Employee secretly records conversations with employer

Reason for dismissal or not?

An employee of TU Delft secretly recorded at least eight conversations with her employer. For this reason, the employer went to the subdistrict court and requested that the employment contract be dissolved. You can read here whether this request was successful.

What were the facts?

The employee had worked at TU Delft since 15 October 2018 on the basis of a two-year civil servant's appointment. On 15 October 2020, the employment contract was extended by one year because TU Delft had doubts about her performance.

However, the employee was of the opinion that she should have been given a permanent contract. Therefore, on 13 November 2020, she instituted proceedings before the subdistrict court. On 5 October 2021, the court ruled against her. The employment contract therefore ended by operation of law on 15 October 2021 and the employee received a transitional allowance. On 8 December 2021, the employee lodged an appeal against the ruling of the Subdistrict Court. The so-called statement of grievances, a written document in the appeal proceedings, showed that the employee had secretly recorded a total of eight conversations with her employer. This was very much against TU Delft's grain.

As the appeal proceedings were still ongoing, and there was therefore a chance that the Court of Appeal would rule that an employment contract for an indefinite period had indeed been concluded, TU Delft went to the subdistrict court with a so-called conditional request for dissolution: if there is still an employment contract after 15 October 2021, TU Delft wants to dissolve this employment contract. According to TU Delft, the employee acted (seriously) culpably by secretly recording the conversations.

What does the subdistrict court rule?

The Subdistrict Court considered the following. At the time of making the recordings of the conversations with her superiors, discussions were held with the employee about her performance. This was against the background of the question whether she was functioning well enough to extend her employment contract for an indefinite period of time. The Subdistrict Court considers it conceivable that the employee found this "exciting", and perhaps also felt that she was in a somewhat uncomfortable position (there was a lot at stake for her). The fact that she made recordings of the conversations with her with a view to better reflecting on her position afterwards, is therefore not culpable in itself, in the opinion of the Subdistrict Court.

What the Subdistrict Court did find culpable, however, was that the employee made the recordings secretly (eight times in fact) and that she subsequently made those recordings public. These were confidential conversations. This constitutes culpable behaviour and therefore there are reasonable grounds to dissolve the employment contract. Moreover, according to the Subdistrict Court, the culpable actions of the employee had led to an irreparable and lasting disruption of the working relationship.

However, the Subdistrict Court did not agree with TU Delft that there was a question of "serious" culpability: the employee believed she had to use the recordings made in the proceedings she had brought before the Subdistrict Court and the Court of Appeal, in order to safeguard her legal positions in those proceedings. This results in reproachable conduct (and a disturbed working relationship) in relation to her employer, but not serious culpability within the meaning of Section 7: 669 subsection 3 under e of the BW. The employee therefore retains her entitlement to transitional compensation.

The employment contract is therefore dissolved, insofar as it is established that there is still an employment contract after 15 October 2021.

You can read the full judgment here.

Do you also have questions about dissolution, disruptive labour relations, (seriously) culpable behaviour and other labour law issues? SPEE lawyers & mediation advise and assist employers and employees.

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