Secret Recordings Admissible in Some Cases

06 August 2024

The Authority has confirmed that secret recordings can be used in some circumstances.

In Downer v LM Architectural Builders Ltd [2024] the employee raised a personal grievance; and in her evidence she included recordings of two conversations with her manager.

The first recording was of a conversation between both parties, made by the employee without her manager’s knowledge. The employee was a party to the conversation, so it was not deemed illegal.

The manager had accused the employee of serious misconduct and offered two weeks’ pay for her to leave. Disciplinary action was threatened if the offer was not accepted.

The manager argued the conversation was on a without prejudice basis. The employee said there was no express reference to the conversation being without prejudice.

While the Authority noted that a communication did not need to be labelled or referenced as being without prejudice for it to attract privilege, it decided the conversation was not a without prejudice communication and therefore it was admissible.

The second recording was of a telephone conversation between the manager and a third party. The employee had left her phone on her desk with the record function operating.

The Authority assumed from the nature of the conversation, and the fact that no one else was present at the time, that the manager was having a private telephone conversation with a third party.

Although it was illegal under the Crimes Act 1961 because the employee was not a party to it, the Authority had to determine whether the recording was improperly obtained. Given the secretive nature of the recording, and the manager thinking he was sharing a private conversation, the Authority concluded it had been improperly obtained.

Unlike criminal trials, there is no presumption that improperly obtained evidence is inadmissible in the Authority.

The Evidence Act 2006 also did not apply to the Authority.

However, the Authority found that improperly obtained recordings went against good-faith behaviour, did not sit well with equity and good conscience, and was a breach of a person’s privacy.

The Authority therefore concluded that the second recording was inadmissible.

What should you do to avoid being caught out?

If you don’t want a meeting recorded, at the start of the meeting ask the other party whether they intend recording the meeting?
Whatever the answer, make clear that you object to the meeting being recorded.
At that point the other party may agree not to record the meeting. In that case check phones are on the table and turned off, then proceed with caution.
If the other party insists on recording the meeting, you may then decide you do not wish to proceed at that time and request an adjournment.
During the adjournment you may be able to persuade the other party not to record the meeting (because you think it may inhibit frank discussion of the issues etc).
If no joy, then proceed with extreme caution.
If the meeting is about performance concerns or disciplinary action, you need the meeting to be on the record so you can rely on that fact in the future.
If you are going to make a without prejudice offer at some point, first ensure the other party agrees to have a without prejudice discussion, then record that fact in your notes.
On the other hand you may be comfortable recording the meeting as then there is no argument about what was said or the tenor of the conversation.
We use software that records meetings and produces both an audio copy and a transcript - with a choice of AI generated content at low cost with 90% accuracy, or human generated content at 99% accuracy.

If you’re uncomfortable or inexperienced in such settings, its best the meeting is not recorded because there is a risk you may say the wrong thing, or use incorrect phrasing or terminology. In that case you need a competent person to lead the meeting.

Whatever the case, it’s important to maintain your composure, think before you saying anything and choose your words wisely. Ensure you have another person present who can later corroborate what was said.

For further information, contact: Tony Teesdale 021 920 323, Justine O’Connell 021 920 410 or Michelle Battersby 021 993 735.