Can an Employee Secretly Record Their Employer in the Netherlands?

Be careful: secretly recording a conversation is a criminal offence in the Netherlands if the person making the recording is not a participant in the conversation. However, if the employee is participating in the discussion, they do not need permission from their employer to record it. The employee does violate the law if they leave recording equipment behind and then exit the room. In short, recording is allowed, but you must be present during the conversation. You also don’t have to announce it, but you must have a legitimate interest. What we sometimes see in the U.S., where people have their dashcams running all day, is not allowed in the workplace or even in your work area if others come and go. That would violate privacy regulations. If you think you’re going into a difficult conversation with a manager or want to gather evidence that your supervisor is breaking the law, then you do have a legitimate interest and may make recordings.

Can an employee use such a recording as evidence in a court of law?

That depends on weighing interests. There are no fixed rules. As noted, the employee must have a justified interest, and that interest must outweigh the employer’s interest. The employer has an interest in protecting personal privacy. However, case law indicates that secretly recording in employment or business contexts is not typically considered unlawful. A few examples:

Amsterdam District Court (2010): An employee secretly recorded conversations with the director. Shortly before the hearing, the employee submitted fragments of the transcript as evidence. The court found no unacceptable privacy violation, as the conversations were mainly business-related. The fact that the director didn’t expect the recordings didn’t change that. However, the judge awarded lower compensation because the tapes contributed to the escalation of the situation.
North Holland District Court (2013): The court ruled that the employee’s secret recordings of conversations with an absentee supervisor were not unlawful because the talks were purely business. The recordings served a legitimate purpose: avoiding future disputes about what was said in earlier calls.
Court of Appeal s-Hertogenbosch (2016): An employee recorded some conversations he wasn’t present for. For those, the court ruled that it constituted a serious privacy breach and a criminal offence (Article 139 of the Penal Code). For conversations he was present for, the court said recording was technically not allowed, but understandable given the anticipated unpleasant nature of the conversation.
North Holland District Court (2022): An employer denied that a profit-sharing agreement was made. The employee had secretly recorded the conversation in which the general director made the promise. The judge found that the recordings sufficiently proved the agreement and awarded the employee €485,939.85 gross in profit-sharing.

Read Also: 25 Key Questions About Dutch Employment Law Answered (For Expats and Employers)

Not all judges are fond of secret recordings

Gelderland District Court (2020): Called it “extremely improper” when an employee secretly recorded behavior-related conversations with a supervisor. The recordings further damaged the relationship.
Central Netherlands District Court (2021): An employee recorded conversations without prior notice. The court agreed with the employer: participants should be able to speak freely without fear of being secretly recorded. Even if, as claimed, the employee had difficulty remembering conversations for health reasons, they should have mentioned the recording beforehand. A good employee is expected to state their intent to record, the judge said. This duty to inform is included in Article 13 of the GDPR, although the court didn’t refer to it directly.

Damaged employment relationship

- Rotterdam District Court (2018): Held that while an employee recording their conversation isn’t a criminal offense, it can disrupt the employment relationship and breach privacy. Prolonged secret recordings contributed to a profound and lasting disturbance in the relationship, mainly since the employee used the recording as a threat. The contract was terminated for this reason.
- Gelderland District Court (2019): Similarly, it was concluded that while secretly recording conversations with supervisors and HR wasn’t seriously culpable, it did result in a disturbed relationship.
- The Hague District Court (2021): Terminated the employment contract due to a permanently disturbed relationship, after it became clear that the employee had secretly recorded performance reviews. Continuing the employment was no longer viable.
- The Hague District Court (2022): Considered that making recordings to later reflect on one’s position is not inherently blameworthy. However, secretly making and publishing eight such recordings was blameworthy. The tapes caused a serious and lasting breakdown in the relationship. The judge also implicitly referenced GDPR principles. Publishing the recording without consent violated GDPR’s lawfulness and transparency principles.

Summary

In civil procedures, unlawfully obtained evidence is not automatically excluded. Judges weigh the interest of truth-finding against other interests. As a result, such evidence is usually accepted in practice. However, a judge might still find secret recordings inappropriate, which could weaken the employee’s legal position in, for example, a case involving dismissal.

During employment, an employee risks damaging the trust relationship with the employer if secret recordings in the Netherlands come to light. However, once it’s clear the employment is ending, it may be advisable to make recordings to collect evidence and protect one’s legal position. If you’re in need of assistance in interpreting your rights, reach out to Flott Advocatuur.