The secret recording of conversations by employees is a sensitive issue. Employees often view it as an important tool, while employers see it as a breach of trust. What is the legal framework? Is it permitted? And what can you do about it?
In principle, an employee is permitted to secretly record conversations in which they are a participant. This is not a criminal offense, as long as the employee is a participant in the conversation. However, it is generally considered undesirable and can lead to a strained working relationship or even termination of the employment contract. In recent years, there have been several court rulings on this matter. Although these rulings are highly context-dependent, they do offer some guidance.
How Judges Weigh the Circumstances?
When ruling on secret recordings made by employees, judges primarily consider the context and the motives. Secretly recording a conversation is generally not sufficient to establish serious misconduct, especially if it was a one-time incident and the employee felt compelled to do so due to a conflict or a lack of trust. In long-term or systematic cases, where the employee repeatedly makes secret recordings, this can lead to a disrupted working relationship and termination of the employment contract.
The conversation partner’s right to privacy carries little weight in civil proceedings. Secretly recorded conversations are often admitted as evidence by judges, unless there are additional circumstances that justify excluding the evidence, such as a serious invasion of privacy or the recording of private conversations. In business conversations between an employee and an employer, the importance of establishing the truth is often given greater weight than the privacy of the conversation partner.
Case law examples
When an employee routinely makes secret recordings, this often works to their disadvantage. Especially when there is already a breach of trust or a strained working relationship, this can contribute to the finding that there is a serious and lasting disruption of the working relationship. This was also the case in the recent ruling of February 2026 (ECLI:NL:RBLIM:2026:1081). An employee who, at a certain point, secretly recorded virtually every conversation with managers and their immediate colleagues has made a return to the employer illusory, according to the court.ECLI:NL:RBLIM:2026:1081). An employee who at one point surreptitiously recorded virtually every conversation with supervisors and her immediate coworker made a return to the employer itself illusory, the court said.
Please note! Secretly recording in and of itself is not automatically considered seriously culpable.
That commitments revealed by secret recordings can be regarded as enforceable agreements is evident from this ruling of May 19, 2022 (ECLI:NL:RBNHO:2022:4675). In this case, the employee had recorded a conversation with the director. During this conversation, the director verbally acknowledged a profit-sharing agreement. This recording was submitted as evidence and led to far-reaching consequences for the employer: he was required to pay both fair compensation and nearly half a million euros in profit sharing.
In situations involving behavioral misconduct, secretly recording may in fact be justified. In its ruling of November 19, 2025 (ECLI:NL:RBMNE:2025:6163), the judge ruled that, in that context, covert recordings may be permissible because they are often the only means of proving the inappropriate behavior.
Conclusion
Evidence obtained through secret recordings is generally not excluded in legal proceedings. However, judges do exercise the necessary caution and are critical, because the secret recording creates a certain imbalance between the parties to the conversation. As a result, it cannot always be ruled out that certain topics of conversation or statements were influenced by the recording party’s knowledge that the conversation was being recorded
In summary: an employee may secretly record conversations in which they participate, but this may have consequences under labor law, depending on the frequency, context, and motives. It is advisable to exercise restraint and to be transparent if asked to do so. The public release of recordings without consent is not permitted. The court will always weigh the interests involved, with a focus on establishing the truth and the circumstances of the case.
Practical Tips
- Ask in advance if the other person intends to record the conversation.
- Don’t make unintended commitments.
- Provide a transcript after the conversation to prevent employees from feeling compelled to record conversations themselves.
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