The pitfalls of surreptitious recordings

Against the backdrop of a culture where we are constantly glued to our phones, a recent scandal sparks the query: when is it illegal to record a conversation?

Under the Crimes Act, it is a crime to record a private conversation that you are not a party to.

The offence requires that you have deliberately recorded people, in conversation, who believe that they have an expectation of privacy.

It is not, however, an offence to record a conversation that you are a party to.

Despite this, the legality of recording conversations where only one party knows they are being recorded does get hazy in the employment sphere.

Secret recordings and the duty of good faith

Let’s take an employee who secretly recorded a conversation he had with his boss when discussions got heated over performance issues of some sort.

As a party to the conversation he has not committed a criminal act. But what are the implications for his ongoing employment?

The cornerstone of employment is the relationship of trust and confidence between the employer and employee.

To secretly record a conversation may lead an employer to lose trust and confidence.

Employees owe a duty of good faith to their employers under section 4 of the Employment Relations Act 2000.

Secret recordings may breach the obligation of good faith.

This could, depending on the circumstances, justify dismissal by the employer.

This applies equally to employers.

For example an employer heading into a disciplinary or investigative meeting may find it handy to record the conversation for later.

But secretly recording that conversation may breach the employer’s duty of good faith.

Admissibility of secret workplace recordings as evidence

Let’s say our employee was dismissed and our employee wishes to produce as evidence the recorded conversation he had with his boss.

This is often the case where the contents of a recorded conversation support the person’s argument in an employment dispute.

The courts in the employment law jurisdiction have a broad discretion as to whether to admit such evidence.

Decisions whether or not to admit what are termed ‘surreptitious recordings’ go either way depending on their facts.

As a rule, courts approach the question of admissibility in terms of fairness.

Decisions of the courts and the Employment Relations Authority suggest that relevant factors include:

Whether the conversation was ‘‘off the record’’.

Whether the recording is of high relevance to the dispute at issue.

The time lapse between the act of recording the conversation and disclosing it to authority.

Practical advice

With increasing use and reliance on technologies, the complex issue of secret recordings is not likely to get swept under the rug.

Recording conversations can be a handy tool for both employees and employers in relation to a range of workplace matters.

It enables parties to focus on the conversation at hand, instead of being pre-occupied by writing notes to remember it later.

However, it is best to ask for consent first. Or, at the very least, notify the other party of the fact you are recording the conversation.

Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. E-mail her at MaryJane.Thomas@prlaw.co.nz.