The covert recording of an employee meeting can permanently undermine the relationship of trust between an employer and an employee. But what requirements apply if it has not been established that the employee actually recorded the meeting and there is merely a corresponding suspicion?
The Landesarbeitsgericht (LAG) Baden-Württemberg (Baden-Württemberg Higher Labour Court) had to address this question in its judgment of 3 June 2026 – 21 Sa 63/25 (case no.) –. The court upheld the validity of an extraordinary dismissal with immediate effect that the employer had based on the strong suspicion that an employee meeting had been recorded without authorisation.
Suspicion of a covert recording
The assessment of the evidence is particularly significant in this decision: an extensive memorandum of the meeting, written largely in direct speech and submitted shortly after an employee meeting, together with other circumstances, gave rise to the strong suspicion of a covert recording. At the same time, the judgment makes clear that a dismissal on grounds of suspicion does not require proof of the alleged breach of duty, but does require a careful investigation of the facts and a proper hearing of the employee.
Employee meeting and unusually detailed memorandum
On 2 June 2025, an employee meeting lasting approximately one hour took place at the employer’s premises. In addition to the employee, three representatives of the employer attended the meeting.
On the same day, the employee sent the employer an eight-page memorandum of the meeting in which numerous statements made by the participants were reproduced almost verbatim. Overall, the memorandum contained an unusually large number of individual contributions and detailed fragments of the conversation.
In the employer’s view, the length and wording of the document could not plausibly be explained by memory alone. In particular, the reproduction of colloquial statements, individual fragments of speech and passages that were partly unintelligible gave rise, in its view, to the suspicion that the meeting had been covertly recorded and subsequently transcribed.
Mobile phone on the table
In addition, the employee’s mobile phone and headphones had been lying on the conference table during the employee meeting. The employee had taken almost no notes during the meeting.
The employee denied having made an audio recording. He stated that he had prepared the memorandum immediately after the meeting solely from memory. The particularly contentious situation had resulted in his remembering the content of the meeting especially well.
Hearing and dismissal
By letter dated 4 June 2025, the employer confronted the employee with the suspicion of a covert audio recording and the evidence cited in support of that suspicion. The employee was given an opportunity to respond by 10 June 2025 and denied the allegations.
On 12 June 2025, the employer issued an extraordinary dismissal with immediate effect. In the alternative, it issued an ordinary dismissal with notice.
The employee brought an unfair dismissal action and also asserted claims for remuneration for the months of June to August 2025. He considered the grounds for suspicion insufficient and objected, among other things, that the employer had not given him the opportunity to attend an in-person hearing. He also disputed that the works council had been properly consulted.
The Arbeitsgericht Stuttgart (Stuttgart Labour Court) dismissed the action by judgment of 28 October 2025 – 7 Ca 4016/25 (case no.) –. The employee appealed against this decision.
Decision of the LAG Baden-Württemberg
The LAG Baden-Württemberg dismissed the appeal. In the court’s view, the extraordinary dismissal with immediate effect was valid and had already terminated the employment relationship.
The decisive ground for dismissal was not a proven covert audio recording, but the strong suspicion of a serious breach of duty. In the court’s view, the available circumstantial evidence justified the assumption that the employee may have recorded the employee meeting without the knowledge and consent of the other participants.
Serious breach of trust
The court clarified that a strong suspicion, based on objective facts, that an employee meeting had been recorded without authorisation can constitute a serious breach of trust. Such suspicion may justify an extraordinary dismissal under § 626 Abs. 1 BGB (German Civil Code), even without a prior warning.
The court also considered the requirements relating to the investigation of the facts and the hearing of the employee to have been met. The balancing of interests likewise favoured the employer. The employer could not reasonably have been expected to continue the employment relationship until the expiry of the ordinary notice period.
As the extraordinary dismissal had already terminated the employment relationship, the court no longer had to rule on the ordinary dismissal issued in the alternative or the remuneration claims asserted.
The LAG did not grant leave to appeal on points of law.
Requirements for dismissal on grounds of suspicion
The LAG followed the principles developed by the Bundesarbeitsgericht (Federal Labour Court) on dismissal on grounds of suspicion.
According to these principles, dismissal on grounds of suspicion may be considered if strong grounds for suspicion are based on objective facts, the suspicion is capable of destroying the trust required for the employment relationship to continue, and the employer has made every reasonable effort to investigate the facts. This includes, in particular, giving the employee an opportunity to respond.
High degree of probability required
The suspicion must be strong. There must be a high degree of probability that the breach of duty was actually committed. Based on general experience, the established circumstances must not be equally capable of being explained by a sequence of events that would not justify extraordinary dismissal.
The decisive factor is not solely whether the suspected conduct constitutes a criminal offence. Rather, the relevant issue is whether there has been a material breach of duties under the employment contract that impairs the trust required for the employment relationship to continue.
The LAG considered these requirements to have been met in the case at hand.
Memorandum as key circumstantial evidence
The court attached particular weight to the content and form of the eight-page memorandum.
The document reproduced an approximately one-hour meeting involving several participants in unusual detail. In addition to numerous almost verbatim statements, it contained colloquial wording, minute fragments of the conversation and passages that were partly unintelligible.
In the court’s view, this particular form of memorandum could not plausibly be reconciled with the employee’s explanation that he had reconstructed the course of the meeting solely from memory.
In reaching this conclusion, the LAG did not rely solely on the length of the document. Rather, the decisive factor was the totality of the unusual features which, in the court’s view, indicated that a technical recording had been made and subsequently transcribed.
Hardly any written notes
The court also took into account that the employee had taken almost no notes during the meeting. His explanation that the incorrect and partly unintelligible passages were attributable to inadvertent errors when preparing the document did not convince the court.
Nor did the reference to a particularly good memory due to the tense atmosphere of the meeting dispel the suspicion. Although a contentious situation could result in individual statements being remembered particularly well, this did not provide a plausible explanation for such a detailed verbatim record.
The court therefore did not treat the memorandum as stand-alone evidence that a recording had actually been made, but as key circumstantial evidence supporting the strong suspicion of a covert recording.
Significance of the mobile phone
The placement of the mobile phone and headphones on the conference table was also included in the assessment.
However, the LAG expressly clarified that the mere presence of a mobile phone and headphones does not, in itself, carry sufficient evidential weight to indicate that a meeting was covertly recorded.
Rather, the decisive factor was the interaction between this circumstance and the unusual features of the memorandum. The mobile phone was a device capable of making a recording and thus reinforced the suspicion already arising from the memorandum.
The court also pointed out that a recording could not be ruled out if it had been made using another device carried, for example, in a bag.
The decision therefore does not establish a presumption that a smartphone lying on a table is, in itself, sufficient to justify suspicion of a covert recording. An overall assessment of the specific circumstances remains decisive.
Employee’s response did not sufficiently dispel suspicion
The employee had argued that he had prepared the memorandum from memory immediately after the meeting. His wife was said to be able to confirm that the document had been produced in this manner.
The LAG considered these submissions insufficiently substantiated. The employee had not set out in sufficiently specific terms when, how and under what circumstances he had prepared the memorandum.
The court therefore also saw no reason to hear the wife as a witness. In the court’s view, the offer of her evidence could have amounted to an impermissible fishing expedition because sufficiently specific factual submissions concerning the circumstances in which the memorandum had been prepared were already lacking.
The court therefore did not reject the employee’s account merely because he disputed the suspicion. The decisive factor was that, following an assessment of the circumstances as a whole, his explanation did not offer a sufficiently plausible alternative to the suspected recording.
Proper hearing of the employee
Another central issue concerned the hearing before the dismissal on grounds of suspicion was issued.
By letter dated 4 June 2025, the employer had informed the employee of the suspicion, described the facts and the individual grounds for suspicion, and granted him until 10 June 2025 to respond.
In the LAG’s view, this satisfied the requirements for a proper hearing in connection with a dismissal on grounds of suspicion. The employee was able to comment on the individual allegations within the period set.
Under the circumstances of the specific case, an in-person oral hearing was not strictly necessary. In this context, the court also took into account the parties’ previous communications and the employee’s position regarding in-person appointments at the employer’s site.
Accordingly, a dismissal on grounds of suspicion does not invariably require an oral hearing. The decisive factors are that the employee is aware of the specific suspicion, is given sufficient opportunity to respond and that the employer takes the employee’s response into account when making its decision.
The hearing must facilitate a genuine investigation of the facts. It must not merely serve to formalise retrospectively a dismissal decision that has already been made and is no longer open to reconsideration.
Prior warning not required
The LAG regarded the strong suspicion of a covert recording as a serious breach of duty that fundamentally impaired the trust required for the employment relationship to continue.
A covert recording of an employee meeting interferes with the personality rights of the other participants. At the same time, it can permanently undermine confidence in the confidentiality of internal employee meetings.
In the court’s assessment, a prior warning was therefore not required. Given the seriousness of the suspected breach of duty and the resulting breakdown of trust, the employer was entitled to assume that a warning was not available as an equally suitable, less severe measure.
It should be noted in this context that not every breach of the confidentiality of a meeting automatically justifies dismissal with immediate effect. The circumstances of the individual case remain decisive, particularly the seriousness of the breach of duty and whether the employer can reasonably be expected to continue the employment relationship.
Balancing of interests and proportionality
Finally, the LAG balanced the parties’ interests pursuant to § 626 Abs. 1 BGB.
On the employee’s side, the court took into account his age, family circumstances and the maintenance obligations he claimed to have towards five children. These circumstances gave rise to a substantial interest in the continuation of the employment relationship.
However, the seriousness of the alleged breach of duty, in particular, weighed against the employee. Further factors were the comparatively short duration of the employment relationship of just under two years and two prior warnings that had already been upheld with final and binding effect.
The court considered the trust required for continued cooperation to have been permanently impaired. Given the seriousness of the suspicion, the employer could not reasonably have been expected to continue the employment relationship until the ordinary notice period expired on 30 September 2025.
The extraordinary dismissal was therefore proportionate even when the employee’s personal and financial interests were taken into account.
Significance for employment law practice
The decision of the LAG Baden-Württemberg makes clear that a dismissal based on the suspicion of a covert recording of a meeting may be valid even if the employer cannot provide direct proof of the recording.
In particular, the following conclusions can be drawn for employment law practice:
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A dismissal on grounds of suspicion requires reliable facts. The employer must be able to present specific circumstantial evidence which, taken as a whole, gives rise to a strong suspicion. Mere distrust or the abstract possibility that a recording was made is not sufficient.
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An overall assessment is decisive. An unusually detailed memorandum can constitute significant circumstantial evidence. However, its evidential value depends on the specific circumstances.
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The hearing must be carefully prepared. The employee must be informed of the specific grounds for suspicion and given sufficient opportunity to respond to them.
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A warning may not be required. Where there is a strong suspicion that permanently destroys the trust required for cooperation, extraordinary dismissal without a prior warning may be justified. This requires a careful examination of the circumstances of the individual case.
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The balancing of interests remains indispensable. Even where there is strong suspicion, it must be separately assessed whether the employer can reasonably be expected to continue the employment relationship until the expiry of the ordinary notice period.
Employers are therefore advised to document grounds for suspicion carefully, also examine exculpatory circumstances and conduct a legally sound hearing before issuing a dismissal. Employees, for their part, should use the opportunity to respond, provide a plausible explanation of how suspicious documents were created and, where appropriate, submit specific exculpatory facts.
Conclusion
In its judgment of 3 June 2026 – 21 Sa 63/25 –, the LAG Baden-Württemberg confirms that the strong suspicion that an employee meeting was covertly recorded may constitute good cause for extraordinary dismissal with immediate effect.
Of particular relevance is the assessment of an unusually detailed memorandum as key circumstantial evidence supporting the suspicion. The decisive factor was not any single circumstance, but the interaction of several unusual features which, in the court’s view, could not plausibly be explained by the employee’s assertion that he had prepared the document from memory.
At the same time, the decision underscores the limits of dismissal on grounds of suspicion: objective facts, strong suspicion, an adequate hearing and a comprehensive balancing of interests remain necessary. The mere possibility of a covert recording is not sufficient.
MTR Legal Rechtsanwälte advises on employment law matters. Further information is available at Employment Law Advice.
