Introduction
Recording conversations between employers and employees is becoming increasingly common. In principle, employees are allowed to record conversations in which they are present without permission. However, this poses risks to the employment relationship. Stricter rules apply to employers: they may only record conversations with prior consent.
Recording Conversations by Employees
In practice, this is happening more and more often: employees recording conversations with their employer, often without giving prior notice. From a legal standpoint, there is, in principle, nothing wrong with this. There is no legal obligation to ask for prior permission to record a conversation in which you yourself are participating. Secretly recording such a conversation is therefore not a criminal offense.
Nevertheless, secretly recording conversations can have consequences under labor law. Although it is legally permitted, it is often viewed as a serious breach of trust. Courts regularly rule that repeated secret recordings can disrupt the employment relationship so severely that this may constitute grounds for terminating the employment contract. In other words: it is allowed, but it can lead to termination.
Records of Conversations as Evidence
Employees who record conversations may, in principle, use those recordings as evidence in legal proceedings. Under labor law, establishing the truth takes precedence over the manner in which the evidence was obtained. Judges therefore rarely exclude conversation recordings, even if the recording was made without the employer’s knowledge.
This may be relevant, for example, in discussions about exactly what was said during a performance review, a progress review, or an exit interview. For employees, recording conversations can therefore be strategically beneficial, provided they are aware of the potential impact on the relationship of trust with their employer.
Recording Conversations by Employers
Stricter rules apply to employers. An employer may only record conversations with employees if the employee gives unambiguous consent in advance. Without consent, recording is generally prohibited, unless there are exceptional circumstances. Examples include serious suspicions of criminal offenses, such as theft or fraud, where recording conversations may be necessary for the investigation.
In standard employment law situations, such as performance reviews or discussions regarding absenteeism, it is essential that an employer first explicitly ask the employee for consent before making a recording. If an employer fails to do so, the use of that recording may be unlawful and could result in penalties.
Conclusion
Although employees are allowed to record conversations without permission, doing so can seriously damage the relationship of trust and may even lead to termination. Employers should exercise extra caution and always ask for permission in advance to record conversations. Due diligence remains essential to avoid legal problems.
This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists business owners on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight contracts and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.
Arbeidsadvocaat.nl is happy to help you if you have any questions about recording conversations. Please feel free to contact us .
April 2025