When Can An Employer Record Conversations With Its Employee?

The Danish Data Protection Agency recently severely criticised an employer that violated the law when it recorded multiple conversations with an employee without informing the employee.

Audio recordings of conversations between an employee and an employer may, depending on the circumstances and subject to various conditions, be lawful if they are made as part of securing evidence of specific facts that are necessary to protect the employer's interests. This has previously been established in Supreme Court case law.

In this case before the Data Protection Agency, the question was whether an employer that had recorded several conversations with an employee had a legitimate interest in doing so and whether the employer should have informed the employee that the conversations were being recorded.

The complaint to the Data Protection Agency arose from an employment dispute in court between the former employee and the employer. During the employment, the parties had had several disagreements about the employee's job performance. In connection with those disagreements, a number of conversations were held between the employee and the employer. The conversations concerned, among other things, the employee's behaviour and the quality of the work performed. During the court case, it emerged that the employer had made audio recordings of these conversations over a period of 16 months without the employee's knowledge.

The former employee subsequently filed a complaint to the Data Protection Agency, on the basis that the employer did not have the right to record the conversations and that the employee should have been informed that the conversations were being recorded. The employer believed that it had been necessary to record the conversations in order to secure documentation to be used during the court case.

Lack of legal basis

The Data Protection Agency initially noted that an employer may have a legitimate interest in ensuring an accurate reproduction of a conversation with an employee in order to protect itself in the event of any subsequent claims.

In this specific case, however, the employer had started making the audio recordings at a time when there was no indication that the employee would assert a claim. The audio recordings had begun three years before the employee brought the case in court. Thus, the employer did not have the required legal basis for recording the conversations.

With regard to informing the employee about the recordings, the Data Protection Agency stated that recording a conversation between an employer and an employee is such an unexpected processing of the employee's personal data that the employer must inform the employee that this is taking place. The information must be provided in immediate connection with the conversation and before the audio recording is started, unless specific circumstances dictate otherwise.

Overall, the Data Protection Agency severely criticised the employer for recording the conversations with the employee.

Takeaway for employers

The decision illustrates that, depending on the circumstances, employers may record conversations with employees for the purpose of securing evidence, but that this does not constitute a legitimate interest if the evidence is secured for use in a possible (and, at the time of recording, hypothetical) claim that the employee may later bring against the employer.

With this decision, the Data Protection Agency also establishes that an employer's recording of a conversation with an employee must be considered so unexpected for the employee that the employer is, as a general rule, required to inform the employee of the recording.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.