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Employee's secret audio recording was cause for summary dismissal

Submitted by Firm:
Plesner
Firm Contacts:
Henriette Stakemann, Rasmus Christensen
Article Type:
Legal Article
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By judgment of 6 June 2018, the Danish Western High Court established that a customer consultant was not entitled to secretly record a meeting with his superior. The High Court stated that the recording must be regarded as such a fundamental breach of the employee's loyalty obligation that a summary dismissal was justified.

The case originated from very tense pay negotiations that took place at a meeting on 11 October 2016. The employee had secretly recorded the negotiations on an audio file and subsequently transcribed the conversation and submitted the transcript in connection with the proceedings that took place at the city court on 26 January 2017.

In connection with the pay negotiations, the employee had flung a computer mouse through the room and then left the workplace before the end of the working day.

On the same day, the accountant of the company sent an email to the employee, informing him that the company considered the employment relationship to be terminated by choice of the employee.

The High Court found that the email from the employer to the employee did not fulfil the requirements for serving a summary dismissal. Therefore, the Court did not consider the employer having summarily dismissed the employee.

However, the High Court found that the secret audio recording of the meeting constituted a fundamental breach of the employee's loyalty obligation and therefore, the company was entitled to summarily dismiss the employee on 27 January 2017 with retroactive effect as from 11 October 2016.

According to the available information, the lawyer of the employee has applied to take the matter to the Danish Supreme Court.

The judgment shows that secret audio recording at the workplace may constitute a fundamental breach of the employee's loyalty obligation towards the employer. Also, the judgment is one of the rare examples where a summary dismissal has retroactive effect. This was technically possible because the employee had already left the employment following the 11 October 2016 incident and thus not provided any working capacity in the period until 27 January 2017.