Covert Recordings by Employees at Work

For many years, it has been considered that covertly recording conversations or meetings in the workplace is intrinsically intrusive and would generally require a high level of justification to be considered admissible in employment proceedings.

Principle 4 of the Privacy Act states that personal information must not be collected by means that are unlawful, unfair, or intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Relevant case law since Talbot v Air NZ [1996] has set principles of the admissibility of covert recordings:

The overriding principle must be fairness to both sides
Whether there was an expectation of a confidential or “off the record” discussion;
Whether the person doing the recording was present during the recording i.e. they were part of the conversation.

The Court of Appeal in 2000 stated “It is not unlawful for a participant to tape record a conversation without the knowledge of the other party… Nor is there necessarily anything unfair about doing so, it all depends on the circumstances.”

In 2008 the Privacy Commissioner held that it was acceptable for a caregiver to covertly record his fellow-worker’s conversations with clients (young people with disabilities) because he was concerned about the way the man spoke to them and thought that might be a safety risk to the clients. The caregiver then handed the recording to his employer and it was used in disciplinary proceedings.

The key being that an employee could covertly record a conversation that they were party to, but not record others where they were not part of the conversation or meeting. This was qualified in Cliff v Bay of Plenty DHB [2015] where the employee invited her manager to a meeting on false pretences so she could record her telling him to stop harassing her. In this case, it was considered unfair.

Against these judgements was a recent determination in the Employment Relations Authority in September 2016, where an employee recorded other employees’ conversations while she was not present in order to establish that her co-workers were gossiping and bullying her. The ERA allowed the recording as evidence of how she was treated in the workplace.

It remains to be seen whether this latest decision will set the tone for future ERA decisions, but there are steps that employers can take such as introducing a policy that states that covert recordings of other employees in the workplace is not acceptable and a breach of the organisation’s Code of Conduct. The policy could also state that where the employer or an employee wish to record a meeting or conversation, they must first advise the other party.