Germany: Secretly recording a staff appraisal can justify termination of employment with immediate effect

In the case before the State Labour Court of Hessen, an employee had received a termination notice of his employment with immediate effect, i.e. without observing a notice period, and challenged this before the court. The employer justified the termination with the fact that the employee had secretly recorded a staff appraisal held between him, his superiors and a works council member regarding the employee’s conduct. The employee had later admitted to having recorded the meeting in an email, in which he asserted claims referencing to the record. After becoming aware that the meeting had been recorded, the employer issued the termination.

The State Labour Court found that the termination of the employment with immediate effect was justified, as the employee had violated the general right of privacy of the other participants of the staff appraisal by secretly recording the meeting with his smartphone. The employee argued that he had not been aware that it was forbidden to record a staff appraisal and he had needed the record to enforce his claims against the employer. The court did not accept these arguments as a suitable justification. Based on a weighing of the interests of both parties, the court deemed the termination was justified, even though the employee had been employed for over 25 years. The court also considered that the employee had received a written warning prior to the termination due to his conduct, which was the reason for the staff appraisal. Therefore, the employment relationship was already impaired before the staff appraisal.

The employee challenged the ruling of the State Court before the German Federal Labor Court. A verdict from the Federal Labour Court, which could overturn the verdict of the State Court, is still pending.