What to know about secret recordings in the workplace
It may sound like something out of a movie but today almost everybody has the ability to make a high quality audio recording of any interaction we might have in our daily lives. For employees and employers facing uncomfortable situations at work (perhaps a disciplinary meeting or conversation about redundancy) it may be tempting to make a secret recording to ensure accuracy, or protect themselves from the other party ‘spinning the narrative’ later on. However, do any legal issues arise as a result?
Are secret recordings legal?
It is often assumed recording a conversation without the other party’s consent is unlawful, however this is not always the case. Intercepting (including recording) a private communication is a crime with a maximum sentence of two years imprisonment (section 216B of the Crimes Act 1961), however it is not a crime where the person is a party to that communication. In practice this means that no criminal liability arises where, for example, an employee secretly records a disciplinary meeting they have with their employer without the employer’s knowledge.
It is also commonly assumed that secretly recording a conversation is a breach of the Privacy Act 2020, however again this is not always the case in the context of an employee or employer secretly recording a meeting they are a party to – the Employment Relations Authority commented on this issue in Simms v Santos Mount Eden Limited at [14], referring to two cases where the Employment Court (Talbot v Air New Zealand Limited) and the Court of Appeal (Harder v Proceedings Commissioner) had found taping a private telephone conversation was not illegal, and not a breach of the Privacy Act.
Should secret recordings be made in the workplace?
So, does this mean employees and employers are free to secretly record conversations without issues arising? No – for two main reasons:
- the party making the secret recording could be in breach of the obligation to act in good faith; and
- the recording made may not be admissible as evidence in the event a dispute proceeds to the Employment Relations Authority or Court.
Parties to an employment relationship are required to act in good faith towards each other – depending on the circumstances, making a secret recording could be a breach of this duty and expose the party in breach to legal liability. For example, in Simpson v IBM New Zealand Limited Mr Simpson made a secret recording of meeting with the management team – the Authority found these recordings were a breach of good faith (at [265]) and ordered him to pay a penalty of $4,000 to his employer due to, among other things, the breach of good faith as a result of the recordings. Similarly, in Cliff v Bay of Plenty DHB the Authority determined (at [76]-[78]) secret recordings taken by Ms Cliff were misleading and deceptive behaviour in breach of the implied duty of trust and confidence, and potentially the duty of good faith.
If a recording of a conversation is made with consent this will almost always be admissible as evidence, however in the case of a secret recording it may not. The Authority has the power to allow secret recordings to be admitted as evidence if in equity and good conscience it determines it should (section 160(2) of the Employment Relations Act 2000), however it is not always the case this discretion will be applied in the recorder’s favour.
Will the secret recording be admissible?
In Simms, the Authority considered that fairness was the overriding principle when determining if a secret recording should be admissible as evidence. In Muriwa v KJ and PE Radich Limited at [41] the Authority expanded upon this and considered three key questions when determining whether to allow the admission of a secret recording:
- was the recording made lawfully?;
- what is the quality of evidence provided by the recording?; and
- is the other party unfairly disadvantaged by how the evidence came to be produced?
Verdict on secret recordings in the workplace?
Overall, although justifiable and admissible in some circumstances, secret recordings are not to be encouraged. It is certainly not best practice for employees or employers to make secret recordings of conversations between them, and to avoid issues of admissibility and potential legal liability resulting from a breach of good faith, parties should be honest and communicative with each other, putting the other on notice if they intend to record a conversation.
If you have any questions or queries in relation to this topic, please get in touch with the Watermark team directly. We are happy to advise you.
Jonathan Charlton
Solicitor
09 532 8211