New Zealand Law Society - Covert recordings by employees and their admissibility as evidence

Covert recordings by employees and their admissibility as evidence

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With our phones to hand, most of us have the means to record a conversation or a scene playing out. With the agreement of those involved, the occurrence of the recording is likely to be uncontroversial. However, interesting legal issues arise when the recording is covert, and when the recording party later attempts to rely upon the recording, or a transcript of it, to prove a disputed matter in proceedings.

The issue appears regularly in determinations on employment disputes. Often the covert recording is made by the employee, rather than the employer. This is probably due to the power imbalance which is inherent in that relationship and the employee feeling the need to protect themselves. Covert recordings of employees by employers will be difficult to justify in anything but exceptional circumstances.

This article looks at the law on the admissibility of covert audio recordings in the employment context, the approach taken by the courts and the Employment Relations Authority (ERA), and the practical effect of that approach for those in an employment dispute. It deals only with audio recordings, and not with video recordings.

What does employment law say about recordings and their admissibility as evidence?

Evidence given in the ERA is not subject to the Evidence Act 2006. The ERA has broad power to admit evidence in the Employment Relations Act 2000 at s 160(2): “The [ERA] may take into account such evidence and information as in equity and good conscience it thinks fit, whether strictly legal evidence or not.”

The ERA and courts have approached the question of admissibility squarely as a question of fairness. For some discussion of this see Simms v Santos Mount Eden Ltd ERA Auckland AA254/03, 21 August 2003. The circumstances in which the recording was made is the first step in determining whether the evidence is admissible or not. (Simms v Santos Mount Eden Ltd, para [7]).

Recording others when the person making the recording is not party to the conversation is generally not admissible. See, for example, the recent ERA decision of Firman v Insin Ltd t/a Synergy Hair Riccarton [2016] NZERA Christchurch 156.

In what circumstances have the courts and ERA found covert recordings admissible?

Talbot v Air New Zealand [1996] 1 NZLR 414, [1995] 2 ERNZ 356 (CA)

The Court of Appeal considered a recording of a telephone conversation between the HR manager for Air New Zealand, Mr Taylor, and the Industrial Director of the Airline Pilots Association, Captain Talbot. The call was relayed to two disclosed listeners using a speaker phone. There was no discussion about recording the conversation, which was done by Captain Talbot.

The Employment Court said the recording was inadmissible, because it was a breach of the implied duty of trust and confidence, but the Court of Appeal disagreed. It unanimously said that recording a call in those circumstances, despite the lack of disclosure, was not a breach of good will or trust and confidence because: the conversation was not confidential or off the record; it was disclosed that there were others listening in on the call; and there was no evidence that Mr Taylor (unaware of being recorded) regarded the recording as unfair. This was an open conversation where it would have been anticipated that notes would be taken. Issues of privacy did not arise.

The Court of Appeal recognised that there may be cases where a tape recording would be in breach of the implied duty of fair dealing1 “for instance as regards at least some conversations, the use of a concealed body microphone to record face- to-face conversations…but the subject does not lend itself to generalisations.” In this context, the Court said that there would be no discernible impact.

The Court of Appeal made clear that each case must be decided on its merits. There would be circumstances where surreptitious recordings could undermine the standards of integrity, trust and confidence which should prevail in the context of the employer/employee relationship.

The Court of Appeal decision in Talbot is the starting point for determinations on admissibility, but subsequent decisions have gone further.

A key fact which weighed in the Court of Appeal’s reasoning in Talbot was that the conversation was not a private2 one. But a private conversation has been held admissible in Simms v Santos Mount Eden. Presiding Member Wilson said that, while he may have found the secret recording of a private conversation unacceptable or even abhorrent, the recordings were admissible on the basis of the Court of Appeal guidance in Talbot and the overriding principal of fairness to both parties (at para [26]).

It is worth noting that the secret recording of a conversation by one of the parties, is not necessarily a breach of the Privacy Act. (Harder v Proceedings Commissioner [2000] 3 NZLR 80).

It cannot be assumed that making a recording of others when the recording party is not present will be inadmissible either. Where that recording was taken to demonstrate workplace gossiping, and was disclosed to a manager soon after it was made, that has been held admissible, with little regard given to Privacy Act considerations. (Firman v Insyn Ltd t/a Synergy Hair Riccarton [2016] NZERA Christchurch 156, Member Doyle).

What is the practical effect of the case law?

It is difficult to resist the conclusion that, should an employee make a covert recording of a conversation, it is likely to be deemed admissible if it is relevant to an issue in dispute. While each case is taken on its individual facts, case law suggests that admissibility is more likely than not.

However, the relationship of trust and confidence is a cornerstone of the employment relationship. To covertly record a conversation, illustrates the end of that relationship.

If recordings are generally going to be admissible in practice, and especially if the recording of other employees is going to be admissible, it is difficult to see how the modern workplace can avoid a general sense of self protection and concern for privacy, at the expense of the positive relationships of trust and integrity which most of us need to be happy at work.

What can an employer do?

The obvious but over-cautious approach for an employer is to treat any meeting with an employee like it is being recorded, however, that will inevitably lead to constraints upon normal interactions between people at work.

Alternatively, employers could set out at the beginning of a meeting that they will take an accurate note of the meeting which will be provided to the employee; say that the employer does not consent to the meeting being recorded; and ask the employee directly to agree not to record the meeting. This will not necessarily be a bar to admissibility if the employee carries on regardless, but it makes the choice to record particularly underhand.

Naoimh McSparron is an Associate with Wynn Williams. She is part of the Dispute Resolution Team and has a particular interest in employment law. She also often acts for clients involved in civil litigation and relationship property.

  1. This case was prior to the enactment of the Employment Relations Act 2000. The implied duty of fair dealing and the statutory duty of goodwill have been taken to be equivalent. See some discussion in Simms v Santos Mount Eden, ibid, at [18] to [21]
  2. I am using the term "private conversation" to mean a closed conversation, between two people, where either one of those people intend that the conversation should not be wider known, and where the conversation does not take place in the public arena.
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