Taking Audio Recordings of Workplace Events

By Russell Drake

 

With the majority of employees now having access to Smartphones the issues associated with the taking of covert audio and video recordings of workplace activities is now becoming a major concern for employers.

A recent landmark Employment Relations Authority (ERA) determination accepted the ‘secret’ recordings of an employee as valid evidence. Generally it has been accepted (after the John Key – John Banks tea-party incident) that it is permissible to record a conversation where you are an invited party to that conversation, but to record a conversation related to an event that you were not formally party to crossed the line.

This recent ERA Determination, where the employee left a cellphone in a room to gather evidence that other staff were gossiping about her, creates new rules for the acceptance of audio and video recordings.

The taking of ‘secret’ – unauthorised or undisclosed recordings of other staff in the workplace may be considered to be a breach of The Privacy Act however, in the recent ERA case, it is suggested that this may be difficult to pursue, given the party making the recording was an individual rather than an ‘agency’.

Given that workplace relationships are also covered under the banner of “Good Faith” it may be considered that the taking of ‘secret’ recordings may breach the Good Faith obligations of ‘not doing anything to mislead or deceive another party’.

This recent case now puts the “cat amongst the pigeons” in determining what acceptable or unacceptable behaviour is for an employee with respect to the use of electronic recording devices. Given this uncertainty it is highly recommended that every workplace has a clear policy on Electronic (Audio and Visual) Recordings. A well-documented policy will define what is accepted practice (i.e. seeking authorisation prior to making a recording) and what actions may result in disciplinary actions. Where such a policy is in place the ability to use undisclosed or unauthorised recordings may be managed more effectively preventing disputes and grievances from arising.

Please feel free to contact us if you wish to discuss the development of an applicable workplace recordings policy.

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