The employee, who was employed as a social worker at a centre for adults with autism, had set her phone to record while she was in the staff room with two colleagues, and then left it recording when she left the room with a patient. Consequently, the colleagues’ conversations were recorded without the employee herself being present. The question in the case was whether there were objective grounds for dismissing the employee on this basis.
The District Court began by pointing out that the threshold for dismissing an employee is in principle high, and that the requirement for objectivity in section 15-7 of the Working Environment Act depends on a specific discretionary assessment of whether it can be considered reasonable and natural for the employment relationship to be terminated, cf. Rt-2009-685.
Subsequently, it was established that although the starting point for the assessment of evidence in a civil case is a requirement of preponderance of evidence, the requirement of clear or qualified preponderance of evidence is tightened to clear or qualified preponderance of evidence when it is a question of assuming a fact that will be particularly burdensome for a party, cf. Rt-2014-1161. As deliberate recordings of conversations in which one does not participate would be a violation of Section 205(a) of the General Civil Penal Code, the court concluded that a stricter standard of proof had to apply in this case.
The employee had argued that the dismissal was unfair since it was based on the fact that the recording was a criminal offence, which turned out not to be true when the police dropped the criminal case. The District Court did not agree with this, and ruled that the police’s dismissal of the criminal case had no bearing on the civil case between the parties, as both the standard of proof and the standard of guilt would be different.
The employee also argued that she could not be blamed for making the recordings, as it was due to an oversight that her phone was left recording after she herself left the staff room. However, the court found this explanation not very credible, and concluded that she had deliberately made the recordings.
The majority of the court then concluded that the aforementioned circumstances were sufficient to give the employer just cause to dismiss the employee. Central to the court’s assessment was that the audio recording represented a significant transgression and breach of trust towards not only the employer and colleagues, but also the patients at the centre. Recording conversations between others in such a setting could not only represent a breach of the Penal Code, but also the Health Personnel Act, as the audio recording may contain health information about patients without it being justified by the need for health care. Consideration for other employees, as well as the need to maintain an acceptable working environment, was also emphasised. This was particularly true in a workplace where there had previously been working environment challenges, as was the case in this instance.
On this basis, the court concluded that it was justifiable to dismiss the employee because of the hidden audio recording. The court considered the matter to be so serious that the fact that the dismissal hit the employee and her family hard was not given decisive weight. The employee had five children and had been employed by the employer for nine years.
As we have previously advocated, we believe there is a need to regulate the right to make secret audio recordings in labour law matters. Increased use of covert audio recording is very likely to weaken collegial trust in the workplace and contribute to a more dysfunctional labour market. If the case is appealed, it will hopefully help to put the issue higher on the political agenda, so that the legislator will consider changing the law.
Our article series Labour Law Practice provides you with an ongoing update of case law in the field of labour law.
The courts are constantly issuing new judgements in the field of labour law. These judgements contribute to the development of the law and clarification of important labour law issues. However, the case law is extensive and it can be difficult to keep track of it all. With Arbeidsrettspraksis, you get a continuous update of current rulings on individual labour law, which makes it easy to keep track of new case law in the area.
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