Czech Republic: Audio recordings and threatening the employer

In a recent ruling (File No. 21 Cdo 1267/2018), the Czech Supreme Court addressed two questions:

• Under what conditions can audio recordings of conversations taken without the knowledge and consent of the person recorded be used in civil court procedures;
• Can an employee’s employment be terminated without notice in cases where the employee threatens litigation to invalidate his or her notice of termination and to prevent the company from receiving subsidies on which it is dependent.

Background to the decision

The employer gave the employee notice of redundancy. The employee then told the employer that if the employer did not find him an alternative position, he would file an action against the employer, which would have financial consequences for the employer, and would preclude the employer from receiving subsidies (hence stopping all the employer’s funding).  As a result, the employer wanted to terminate the employee’s employment contract immediately. In the proceedings relating to the invalidity of the termination without notice, the employer wanted to use an audio recording of the above conversation as evidence. The recording was taken without the consent and knowledge of the employee.

Audio recording as evidence

In previous cases, courts in civil procedures insisted on the consent of the person recorded as a condition for the use of audio recordings in civil procedures. The Supreme Court reached the decision that under certain conditions, recordings may be used even without consent. In each individual case, this may be left up to the best judgment of the court. Use of an audio recording comes into consideration only in cases when it is used to prove facts which cannot be proven in any other way, and where the other circumstances of the case lead to the conclusion that it is not possible to prioritise the rights of the affected person over the essence of the protected interest, which is the subject of the proceedings. The right to a fair legal process takes precedence over the right to privacy in this case.

Threatening an employer

If an employee threatens to file a legal action claiming the termination of his or her employment was invalid, the employee has only stated his or her legal right to have the validity of the employment relationship evaluated in court. Therefore an employee cannot be punished by immediate termination of the employment relationship for making this threat. This is because an employee cannot be penalised for legally claiming his rights. If, however, an employee threatens to prevent the employer from receiving subsidies on which the employer is dependent, then he or she would undoubtedly be acting in conflict with the legitimate interests of the employer, whose activities are dependent on the subsidies. This is a breach of the employee’s obligations. Making such a threat is an expression of absolute disloyalty towards the employer, and would have to result in complete loss of confidence, which is key in an employment law relationship.