FYI: Employers beware of secret recordings

October 05, 2016

Employment law

A recent decision of the Employment Relations Authority has confirmed that 'secret' recordings made by employees may be used against employers in Authority proceedings, even where they relate to conversations between other staff members, to which the employee was not a party.

The Authority's decision

In the decision of Firman v Insyn Limited[1], Ms Firman made a secret recording of a meeting with her employer, where she was notified of a disciplinary process and potential suspension. The Authority considered that what occurred at that meeting was relevant to the claim that Ms Firman had brought against her employer in the Authority. Therefore, although the meeting had been recorded without the employer's knowledge or permission, the Authority found it to be admissible evidence.

What may be of more concern to both employers and employees, was the fact that a second recording was also held by the Authority to be admissible. Ms Firman had sought to obtain proof that "there was gossiping and bullying undertaken toward her by other staff". Therefore, she intentionally recorded a conversation between staff members whilst she was not present, by way of placement of her cellphone.

The Authority acknowledged that "recording others secretly when the person recording is not participating in a meeting or conversation with them is generally not admissible". The Authority confirmed that it is not an action in good faith and that individuals are entitled to their privacy. However, in the circumstances of the case, the Authority allowed this recording as evidence. The employer had become aware of the recording shortly after it occurred, the recorded staff members had also become aware shortly after, and there was a lot of evidence already before the Authority about staff being recorded on that date.

Implications

The Authority's ruling on the first recording is in line with other Authority cases, which generally allow for secret recordings of meetings to be admitted as evidence where they are relevant to the matters in dispute. The Court of Appeal also confirmed that it is not unlawful for a participant to record a conversation without the knowledge of the other party.[2]

However, it is concerning that the second recording was found to be admissible. That recording was a breach of the privacy of the staff members involved, the employee was not a participant to the conversation, and the Authority acknowledged that it was not "an action in good faith". Nevertheless, it was allowed into the proceedings as relevant evidence.

What can employers do to protect themselves in these circumstances?

We generally recommend that employers pre-empt the risk of secret recordings during disciplinary processes by recording the meetings themselves and/or asking whether anyone wishes to record the meeting. This means that the employer can refer back to a full transcript of what was said during each meeting, and it avoids any arguments about what was said at a later stage. In any event, employers should always assume that conversations may be recorded during meetings, and ensure that they are precise about what they say.

To minimise the risk of secret recordings of staff members generally, we recommend that employers have a clear policy in place to prohibit such behaviour. In particular, the policy ought to emphasise the privacy rights of employees, and prohibit recordings of any employees without their express permission. The policy ought to stipulate that secret recordings may amount to serious misconduct. Such a policy would act as a deterrent for employees, and would provide employers with a clear ability to take disciplinary action against employees if such recordings occur.

[1] [2016] NZERA Christchurch 156.

[2] Harder v Proceedings Commissioner [2000] 3 NZLR 80.

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