Employers and Secret Recordings - Employment Lawyer Auckland - Dukesons Business Law

October 2016

Employment Law

Employers Beware of Secret Recordings

A Dukesons Business Law Update

This update isn't legal advice - if you want legal advice on any employment law or other business law or commercial law issue, please contact me. I'm a business lawyer and part of what I do is to act as an employment lawyer in Auckland - employment law is a critical part of my legal practice.

You may be surprised to learn that secret recordings can be admitted in evidence even though this may involve a breach of privacy and that instinctually, it may just seem like dirty play. The position may even surprise some employment lawyers.

In a recent case before the ERA, an employee who had a claim against her employer was held to be entitled to rely on secret recordings that she had made.

The first recording was of a meeting between the employee and the employer. Based on accepted legal principles, the ERA said that the recording was admissible as evidence because it was relevant to the employee’s claim.

More radically, a secret recording made by the employee of a conversation between other employees was held to be admissible, also because it was relevant to the employee’s claim. The employee had made the recording by leaving her cell phone close by the other employees. Despite the fact that this would have been a clear breach of privacy law and the fact that the ERA considered that the employee wasn’t acting in good faith, and in particular, that the employee wasn’t a party to the conversation, the secret recording was admitted.

In practical terms, employers and employees shouldn’t assume that meetings between them aren't being recorded. That means that whatever is said in meeting should be said with care. In many cases, it would be sensible for the parties to agree that the meetings should be recorded, in an open fashion.

However, there are concerns in relation to secret recordings of others. For that reason, employers may be well advised to ensure that there are provisions in their forms of employment agreement prohibiting the secret recording of staff and stating that such conduct might constitute serious misconduct.

Feel free to send a link to this Update to anyone who would be genuinely interested.

Please contact me if I can help you with any employment law issue, or with any business law or commercial law issues.

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