Recording Workplace Conversations in New Zealand: A Growing Concern
Employees may be asked to attend a meeting with their employer at any time. The meeting might be about performance, conduct, or some other matter or incident they are involved in or have been asked to respond to. The need to maintain a record of such employment meetings is well-understood. In this article, we examine the response to rising legal disputes and concerns over the transparency and fairness of recording workplace meetings, investigations, and interactions.
Legal Framework for Recording Employment Conversations
Employment investigations typically arise in response to allegations of misconduct, discrimination, harassment, or breaches of company policy. These inquiries are an important part of ensuring that workplaces remain safe, respectful, and legally compliant. Section 103A of the Employment Relations Act 2000 (the Act) requires an employer to have sufficiently investigated any allegation, raise those allegations, give an employee a reasonable opportunity to respond, and genuinely consider responses.
The onus is on the employer to prove that it did not take action or dismiss the employee unjustifiably. Evidence of what went on at the meeting is necessary for an employer to discharge that onus. While contemporaneous notes may assist in resolving a dispute as to what occurred and might be best practice, the Employment Court has ruled that there is no obligation to take a written record of a meeting, and a failure to take notes during a meeting does not constitute a procedural flaw1.
Covert vs. Consensual Recordings in the Workplace
What is a Covert Recording?
The secret or covert recording of employment meetings (without informing the other party) is becoming increasingly common with the widespread availability of recording devices such as mobile phones. This trend also raises both legal and ethical concerns for employers and employees. Covert recording might not be a breach of the Privacy Act 2020 depending on the circumstances, but it may well breach the statutory obligation of good faith2 – ie, parties to an employment relationship must deal with each other in good faith and must not do anything likely to mislead or deceive (Section 4 of the Act). A covert recording can amount to deceptive conduct, and can erode trust and confidence in the employment relationship and within the workplace. Issues such as entrapment or being set up by leading questions or manipulation of the conversation to draw the party who is unaware into statements that can be taken out of context.
Legal Consequences of Covert Recordings
The Employment Relations Authority has recognised the seriousness of an employee covertly recording conversations3 .
A covert recording can still be considered in evidence in employment disputes if they are relevant to the employee's claim and have some evidential value. The Employment Relations Authority has the power to admit evidence in equity and good conscience, which may include evidence that might not be admitted in the general civil courts.
Can Employers Record Conversations Without Consent?
There are situations where an employer has secretly recorded conversations between other employees without their consent or knowledge. Generally, this will amount to a breach of the Crimes Act 1961 (section 216B is an offence to record private communications). However, the Employment Relations Authority has allowed the secret recording of conversations between other employees into evidence to enable an employee to prove a claim of workplace gossiping and bullying4.
Best Practice: How to Handle Recordings in the Workplace
In today's digital age, employers and employees should be mindful that work-related conversations and interactions could be secretly recorded. It is good practice to ask the other party if the meeting is being recorded. If the issue of recording a meeting arises, the parties should discuss the issue of recording the meeting and seek to get agreement on a transcript or copy of the recording. Have a policy that deals with the recording of meetings whether the employee is party to the conversation or not and include covert video and audio recording.
Footnotes
1 Here v McAlpine Hussman Limited
[2012] NZEmpC 204 para 37
2 Downer v LM Architectural Builders Limited
[2025] NZERA 55
3 Curnow v Advanced Security Group (Sth Is) Ltd
[2022] NZERA 359
4 Firman v Insyn Limited [2016] NZERA
156
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
