An employee secretly recorded a meeting, what are my rights?

Secret recordings at work

Have you been secretly recorded by an employee?
Franklin Law Associate, Eddie Taia outlines some of the considerations of this current day employment issue.

Most of us own smart phones which can make high-quality audio recordings. People do not need a dedicated recording device. In a workplace environment, it is common practice to use a mobile to record disciplinary meetings between an employer and employee.  If all parties know about and consent to being recorded then this usually causes no controversy.

However, what happens if a recording is made without consent? This can be in a disciplinary meeting, or an ordinary meeting. It can be in an informal context where embarrassing comments are made about others with the expectation that they are made in private. Can these recordings, or a transcript of them, be used in subsequent Court proceedings?

Normally, secret recordings run into difficulties of admissibility in Court proceedings. However, in an employment context the Employment Relations Authority has wide powers under the Employment Relations Act 2000 to admit evidence “… whether strictly legal…or not.” As a result, there have been many employment cases where a party has successfully argued that recordings, or a transcript of recordings, should be admitted to prove matters of dispute, particularly where the recording is the best evidence.

Every case is different and should be considered on its facts. It can come down to whetherit is just or fair, or whether there has been a breach of the cornerstone of an employment relationship: that an employer and employer are expected to act in good faith and in a manner promoting trust and confidence. While having one party secretly record the other is hardly an indication of trust, the Authority has for some time held the view that unless the conversation was understood to be confidential or off the record, or was in some other way restricted, covertly recording a conversation is unlikely to be in breach of the duty of mutual trust and confidence.

It is important to note that successful cases will almost always involve an employee making the secret recording. An employer is very unlikely to succeed in having a surreptitious recording of a conversation with an employee admitted, because of what is generally seen as an imbalance of power.

So what does this mean to you? If you are an employer, you should have appropriate policies dealing with recordings in the workplace. If you meet with an employee and you intend the conversation to be private and confidential, you should say so before the meeting commences. As an employee, you should be up front that you are making the recording and asked for consent.

This area remains uncertain given the broad discretion whether or not recordings should be admissible. However, if you are upfront it will at least take away some of the uncertainty. Ultimately a recording or a transcript of the recording is far preferable to hand written notes which may be open to interpretation and dispute.