Can employees make secret recordings in the workplace?

Being an employer, providing opportunities for people to grow and develop their careers can be endlessly rewarding. It can also be one of the most stressful parts of running a business or organisation. Every employer will experience the stress of having a ‘difficult’ conversation with their staff, it’s unavoidable. Whether it’s to discuss an employee’s pay review, raise concerns around performance, or deal with a disciplinary matter, these conversations are fraught with potential missteps and associated risk. 

We’ve previously written articles on the content of these discussions, including the ability to have confidential ‘without prejudice’ conversations. Another commonly misunderstood aspect of these conversations is the legality around discreet recordings of conversations. It’s relatively common for formal investigation meetings to be recorded. Everyone is aware of the recording and will have access to it in these scenarios. But what about the myriad of other conversations that can happen throughout the life of an employment relationship? It’s important everyone understands their rights and obligations, and a recent determination of the Employment Relations Authority (the “Authority”) provides some important insight and clarity that can be helpful for employers (and employees).  

In the case of Downer v LM Architectural Builders Ltd,[1] the Authority dealt with a preliminary issue regarding the admissibility of two conversations Ms Downer had recorded without LM Architectural Builders’ (LMA) knowledge. The first being a conversation she had with the Managing Director of LMA, Mr Meredith, and the second being a conversation Mr Meredith had on the phone with an unidentified third party. Ms Downer wished to produce both recordings as evidence, while LMA opposed their admissibility.  

Recording One 

The first recording, being a conversation between both Mr Meredith and Ms Downer, was made without Mr Meredith’s knowledge. However, because Ms Downer was a party to the conversation, it was not an illegal act.[2] Recordings of this nature are generally considered to be admissible as evidence in the Authority. However, LMA argued the conversation should be ruled inadmissible on the basis it was ‘without prejudice’. The Authority ultimately found the conversation did not meet the requirements to be considered without prejudice, and the recording was ruled admissible. 

For more information on ‘without prejudice’ conversations, see our article here.  

Recording Two 

Ms Downer was not a party to the conversation in the second recording. In this recording, Mr Meredith was talking on the phone to a third party. Ms Downer was not present but had left her phone on her desk recording any conversations being had in her absence. Similarly to the first recording, Mr Meredith did not know his conversation was being recorded.

LMA argued this recording was illegal and improperly obtained and should therefore be inadmissible. While the Authority found the recording was both illegal, and improperly obtained, further analysis was needed as this doesn’t necessarily preclude the recordings from being admissible. Importantly, this means illegal and improperly obtained recordings may still be admissible in some circumstances. The balancing the Authority must consider is weighing the illegality and how it was obtained, against the broad principles of natural justice, good faith, and principles of equity and good conscience.   

In this case, the Authority made the following observations when making its decision: 

•  Allowing improperly obtained recordings to be admitted as evidence does not promote good faith behaviour in the workplace. The Authority should not encourage this behaviour. 
• Using improper means to obtain evidence does not sit well with seeking the Authority to admit that evidence in equity and good conscience.  
• Mr Meredith expected his conversation to be private and confidential. Evidence obtained in breach of a person’s right to privacy or expectation that they are speaking confidentially does not sit well with equity and good conscience.  
• If recording two were admissible it would most likely compel Mr Meredith to give evidence about the telephone conversation including who he was speaking to and what was said by that person. If Mr Meredith chose to do that rather than object to the admissibility of the evidence, the recording would likely then be admissible.  
• Recording two did not appear to have any significant probative value in terms of the employment relationship problem that would weigh in favour of admitting it as evidence. In contrast the prejudicial impact was seen as significant and weighed against admitting it as evidence. 

Considering the above factors, the Authority found recording two inadmissible on the basis it was illegal, improperly obtained, and there was no reason for the Authority to allow it to be referenced in its investigation.  

This determination highlights a few key factors employers should be aware of when having difficult conversations with their staff or discussing business matters with others.  

• Despite the lack of good faith, on an employee’s part, in making a discreet recording of a meeting or conversation they are a part of, these types of recordings are generally considered admissible as evidence if an employment problem reaches the Authority.  
• Employers should always seek to maintain confidentiality and privacy regarding their staff. Even though the conversation with the third party was ruled inadmissible in this case, the Authority leaves the door open to allow such recordings to be admitted should the circumstances warrant it.  

Our advice  

This highlights the need for employers to act fairly and reasonably at all times, while also following good processes. If undertaking these difficult conversations in such a manner, any recordings of the conversation could ultimately benefit the employer.  

We encourage: 

• Ensuring your workplace policies are reviewed regularly and kept up-to-date to reflect your business practices.  
• Addressing expectations about recordings in the workplace in an organisation’s policies. 
• Preparing well for any difficult conversations, making sure you’re following any applicable policies in place, and with an open mind as to how the conversation and any subsequent processes may unfold. 
• Understanding your obligations regarding employee confidentiality and privacy.  
• Being aware that anything being said may ultimately be used as evidence should an employment problem reach the Employment Relations Authority. 
• If in doubt, seek specialist advice and assistance prior to commencing any processes that may become contentious, to ensure you’re mitigating against the likelihood of missteps exposing you to risk.  

If you need advice or assistance, the specialist DTI Lawyers employment law team can be contacted by phone on 07 282 0174 or email reception@dtilawyers.co.nz.