Introduction
Recording conversations between employer and employee is becoming increasingly common. Employees may in principle record conversations in which they themselves are present without permission. Yet this carries risks for the employment relationship. Stricter rules apply to employers: they may only record conversations with prior consent.
Recording conversations by employees
In practice, it happens more and more often: employees who record conversations with their employers, often without prior notice. From a legal point of view, there is, in principle, nothing wrong with this. There is no legal obligation to request prior permission to record a conversation in which you yourself are participating. Secretly recording such a conversation is therefore not punishable.
Still, there can be employment law consequences if an employee secretly records conversations. Although legally permissible, it is often considered a serious breach of trust. Judges regularly rule that repeated secret recordings can so seriously disrupt the employment relationship that it can be grounds for termination of the employment contract. In other words, it is allowed, but it can lead to dismissal.
Call recordings as evidence
Employees who record a conversation can, in principle, use the recordings as evidence in legal proceedings. In employment law, finding the truth is more important than how the evidence was gathered. Judges therefore rarely rule out conversation recordings, even if the recording was made without the employer's knowledge.
This can be relevant, for example, in discussions about exactly what was said during an appraisal interview, a performance review or an exit interview. For employees, then, recording conversations can make strategic sense, provided they are aware of the potential impact on the bond of trust with the employer.
Recording conversations by employers
Stricter rules apply to employers. An employer may only record conversations with employees if the employee gives unambiguous permission beforehand. In principle, recording is prohibited without permission, unless there is an exceptional situation. Think of a serious suspicion of criminal offenses, such as theft or fraud, where recording conversations may be necessary for the investigation.
In normal employment law situations, such as performance or absence interviews, it is essential that an employer explicitly ask the employee's permission before a recording is made. If an employer fails to do so, the use of that recording may be unlawful and sanctions may follow.
Conclusion
Although employees may record conversations without permission, this can seriously damage the relationship of trust and even lead to dismissal. Employers should be extra careful and always seek prior permission to record conversations. Care remains essential to avoid legal problems.
This blog was written by Mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists entrepreneurs daily with a wide range of employment-related matters. From dismissal cases to drafting watertight contracts and policies – with his practical and personal approach, he helps employers and employees move forward. Want to know more?Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about call recordings. Please feel free to get in touch .
April 2025
