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In a case of general public importance, the Danish Supreme Court has just held that a company was not entitled to summarily dismiss an employee in a situation where the employee in question had secretly recorded a conversation with the managing director of the company.

The case involved a customer consultant in a sales company, who during a meeting on 11 October 2016 had thrown a computer mouse in anger. Different accounts had been given on how the computer mouse had been thrown, including whether it had been thrown at the managing director.

The meeting was held as part of pay negotiations at the company, and two other customer consultants were also present. The meeting continued after the customer consultant had thrown the computer mouse and, later on during the meeting, the managing director apologised for the tone he had used stating:  

”I'm sorry [customer consultant], I have now wound down. I hope you have as well so that we can put an end to this…”

The customer consultant left the workplace a few hours before the end of the standard workday. Later on that same day, the company's bookkeeper wrote as follows in an email to the customer consultant:

”After today's event where you threw an object at the owner and subsequently left the workplace before the end of the standard workday, [the company] is therefore considering your employment at [the company] as terminated as of today's date at your own discretion (...)”.

On 12 October 2016, the customer consultant wrote to the company and apologised for having lost his temper at the meeting. The customer consultant also wrote in the email that he had left work early on the day in question since, according to agreement with the HR manager, he had taken the last two hours of the day off in lieu of pay. The following days, the parties exchanged further correspondence as to what had happened, but both parties maintained their positions. 

On 24 October 2016, the company's lawyer wrote to the customer consultant that the customer consultant's employment had been terminated for cause referring to the fact that the customer consultant had unlawfully left the workplace. 

The customer consultant subsequently instituted proceedings against the company, claiming unjustified summary dismissal. In connection with the district court's hearing of the case, the company became aware on 26 January 2017 that the customer consultant had audio recorded the parties' conversation at the meeting on 11 October 2016. On 27 January 2017, the company’s lawyer once again terminated the customer consultant's employment for cause with reference to the fact that the customer consultant had recorded the meeting on 11 October 2016. The termination for cause took place with effect from the day the recording was made.

Judgment of the High Court of Western Denmark: Summary dismissal with retroactive effect
The issue before the High Court was whether the customer consultant had been summarily dismissed by way of the email from the bookkeeper and, if this was not the case, whether, by way of his audio recording, the customer consultant was in breach of the employment relationship.

The High Court found that the bookkeeper's email could not be interpreted as a summary dismissal since:

"(...) according to its wording and seen in light of what had occurred in connection with the meeting that same day [11 October 2016], [the company’s] email did not meet the requirements of a statement on summary dismissal. Accordingly, [the company] cannot be considered as having summarily dismissed [the customer consultant] by way of its email of 11 October 2016."

However, the High Court found that the audio recording of the meeting on 11 October 2016 – which took place without the customer consultant beforehand having informed the managing director of the company or the other participants that the meeting was being recorded – amounted to material breach of the duty of loyalty, which had given the company just cause to summarily dismiss the customer consultant.

The High Court took into account that the company was not made aware of the contents of the audio recording until on 26 January 2017 when the customer consultant's lawyer produced a transcript of the recording in connection with the district court's hearing of the case. 

The High Court attached importance to the fact that the audio recording had been made without the customer consultant beforehand having informed the employer and the other participants that the meeting was being recorded. The High Court stated as follows in that respect:

"The recording must consequently be deemed to constitute material breach of the duty of loyalty following from the employment relationship and which justified [the company]'s summary dismissal of [the customer consultant]."

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The judgment of the Danish Supreme Court

The throw with the computer mouse
In its decision, the Supreme Court starts by stating that the customer consultant as well as the managing director had been agitated in connection with the meeting. 

Because the throw with the computer mouse had taken place in frustration in connection with a heated discussion about salary and commission, and as it could not be taken into account that the mouse was thrown with the intention of hitting the managing director, the Supreme Court concluded that this course of events did not constitute such breach of the employment relationship such as to justify summary dismissal of the customer consultant, just as the episode could not justify termination. 

The audio recording
With respect to the issue as to the customer consultant's recording of the meeting on 11 October 2016, the Supreme Court starts by stating that it could not be deemed to constitute violation of section 263(2)(ii) of the Danish Penal Code (straffeloven) to record a meeting in which you yourself are participating. Accordingly, the customer consultant's recording of the meeting did not constitute violation of the rules of the Penal Code.

Subsequently, the Supreme Court considered the extent to which the customer consultant's recording of the meeting on 11 October 2016 constituted a violation of data protection legislation. In this connection, the Supreme Court states that 

" ... the assessment of whether the audio recording by an employee of a conversation the employee has with its employer without the employer being aware of the recording constitutes breach of the employment relationship must be based on a specific consideration of the interests of the employee as compared to the interests of the employer and other affected parties". 

In this connection, the Supreme Court states that, in such assessment, the following matters, among other things, must be taken into account: 

  • The object of the recording
  • The background to why the recording was made
  • Whether the employee had special reason to obtain evidence of the setting aside of its rights
  • Which information the employee expected or intended to record
  • To what extent we are talking about information on purely personal matters or information which should be confidential out of consideration for the company or other parties. 

According to the Supreme Court, an audio recording does in itself not constitute breach of the employment relationship, but nonetheless the subsequent storing and use of the recording may according to the circumstances constitute such breach. The Supreme Court also notes that not all violations of data protection legislation constitute breach of the employment relationship, justifying termination or summary dismissal.

Seen in light of the object of and the background to the audio recording in the specific case, the Supreme Court concludes that the customer consultant's recording and subsequent use of the audio recording did not constitute breach as the recording of the conversation without the knowledge of the other participants served an objective purpose, and that the consideration for the managing director and the other participants was not held to be more important than the customer consultant's interest in recording the conversation. 

Accordingly, the customer consultant was awarded salary during the notice period as well as compensation for unfair dismissal. 

Comments by Bech-Bruun
These days when most people possess the technology required to record conversations and are to an increasing extent making and using such recordings in disputes, the Supreme Court's decision in the above matter is highly relevant. 

With its decision, the Supreme Court stipulates that it depends on a specific consideration of the interests involved whether an employee's secret audio recording of meetings (in which the employee participates) with the employer and colleagues constitutes breach of the employment relationship. The act of making the recording does in itself not constitute breach. A more detailed assessment should be made of the object of and the background to the recording, the contents thereof and the subsequent use. 

It is important to bear in mind that the Supreme Court judgment only relates to situations in which the employee records a conversation in which the employee in question participates. In cases where an employee uses equipment to listen in on meetings in which the employee does not participate (thereby violating the rules of the Penal Code), it must be assumed that a basis exists for summary dismissal of the employee.