Introduction

In the Czech Republic, the permissibility of using hidden recordings or other similar kinds of evidence within a court proceeding is quite questionable. At the end of 2014, the country's Constitutional Court issued an interesting decision (II ÚS 1774/14 dated 9 December 2014) on such matters that is particularly relevant for employers, as it deals with a dismissed employee's use of such means against his or her employer.

Factual background of the case

The employment relationship of an employee was unilaterally terminated by the employer on account of the employee's alleged redundancy. At court, the employee claimed that the termination notice was invalid, as he considered his redundancy to be only fictional. The real reason for termination, according to the employee, lay in the criticism of his employer that he had previously voiced to a member of the employer’s foreign management. The employee provided as proof of his criticism, resp. of the fictional character of his redundancy, a secretly produced recording of a conversation he had had with the member of the employer’s foreign management. Both the Supreme Court and the District court refused such proof on the basis it was inadmissible due to the fact that it had been made without the knowledge of the recorded person.

Decision of the Constitutional Court

In its decision, the Constitutional Court declared that the merits of the case lie in a conflict of two constitutionally protected interests: (i) the protection of privacy of a recorded person, and, (ii) the right to a fair proceeding held by the person making the recording for reasons of his / her legal protection. This conflict shall be always considered on a case-by-case basis and is subject to an individual evaluation as to which of these two values shall prevail.

Under normal circumstances, hidden recording (i.e. recording without the knowledge and consent of the recorded persons) is a severe breach of the recorded person’s privacy and as such, is unacceptable from both a moral and a legal perspective in most cases. The Constitutional Court pointed out that it is, in general, strictly against any form of electronic monitoring or hidden recording. However, the Court stated that this general stance does not apply if the person making such a secret recording does so as a part of their defence, in particular if the defending party is a weaker side in the relationship. This exception applies in particular to employment claims. Thus, according to the Court, such recording can be compared to acting in necessity or allowed self-help when it constitutes the only means by which an employee can provide evidence for their defence.

The Constitutional Court concluded that as the recorded person did not provide any personal information in the recording, but rather only discussed matters relevant for the legal protection of the terminated employee, it would be absurd to dismiss such proof on the grounds of protecting the witness's privacy. This conclusion also partly reflects previous case law of the Czech Supreme Court, which highlighted that the acts communicated during work performance or while performing business activity shall not generally be covered by the protection of personal affairs, and thus their recording can be considered as admissible proof. The Constitutional Court went a little bit further in its decision, as it noted that even if the recording included a third party's personal affairs, the right of the terminated employee for a fair proceeding shall still prevail, as he is the weaker party.

Legal regulation

The Constitutional Court's decision in the matter described above is based on the already abolished regulation of civil law (Act No. 40/1964 Coll., Civil Code). But the reasoning of this decision shall also be applicable under the new Civil Code (Act No. 89/2012 Coll., the “NCC”), as the decision generally provides for the same conclusions as now contained in the NCC. According to the NCC (Sec. 88), the audio or video recording may be used without the consent of recorded persons if the recording is used to protect another person’s rights. The NCC thus provides for a generally applicable licence for hidden recording. While the manner and scope of such recording has yet to be clarified by upcoming case law, one can assume that such statutory exemption should apply and secret recording would be admissible in cases similar to the one outlined above.

Resume

The decision highlights that an employee, as a weaker party, may use means of evidence in labour law-related disputes even if these would generally not be accepted. This applies in particular for cases in which there is no other way for the employee to prove the merits. This decision can be seen as opening the well-known Pandora’s box and regarded as a first decision showing possible future interpretation of new civil law regulation.

Recommendation

Therefore, if you are an employer in the Czech Republic, we recommend that you be aware of this decision and express only those thoughts that cannot be used against you when communicating with employees (in particular in those cases in which a possible dispute might occur) ....after all, you cannot be certain whether a record button has been set to “on”.