Employment Matters – Secret recordings, where do you stand?

In a unique case before the Employment Relations Authority, it was ruled that an employee’s secret recording did not amount to serious misconduct. By Sarah Gedge.

Isn’t technology wonderful? It seems the moment something is invented, we find new and interesting ways to let it complicate life!

With modern smartphones, recording a conversation or a meeting can be quick, simple, and very discreet. A question often asked by employers is: can you dismiss an employee for secretly recording a conversation at work?

The answer is not simple, as the following case illustrates. But it may surprise you.

The case involved Ms Cliff, a registered nurse at a large hospital. Ms Cliff was employed by the Bay of Plenty District Health Board and had been in her role for five years when problems began to arise between her and the new associate clinical nurse manager, Mr Matthews.

Matthews had noticed Cliff arriving late to work on a number of occasions, and had raised these and other issues with her in various performance meetings.
Some months later, Cliff emailed Matthews seeking a “catch up meeting”. The parties met and Cliff told Matthews, to his surprise, she thought he was harassing her.
Matthews terminated the meeting. Unbeknown to him, Cliff had been recording the meeting.

A formal complaint was raised and after a lengthy process, Cliff was eventually dismissed for her “lack of insight, covert recording of meetings and consequential loss of trust and confidence”.

Cliff challenged her dismissal and the Employment Relations Authority considered whether the secret recording amounted to serious misconduct, capable of justifying her dismissal.

A unique situation in law
The Authority commented that the issue of whether the secret recording of a meeting by an employee with her manager constituted serious misconduct, had not been determined; the majority of case law has typically involved the recording by employers of their employees.

The leading Court of Appeal decision on surreptitious recording of conversations held that in some circumstances, this action may undermine the confidence and trust that is at the heart of good continuing working relations between employer and employee, and could breach acceptable standards in employment relations. It would depend on the circumstances.

In one case, the secret recording of a conversation was found to have been unfair where the conversation was supposed to be “off the record”, and in another case it had been unfair because the employee who was recorded was told that others were listening to the conversation.

Was it fair for the employee to record the conversation?
In Ms Cliff’s case, she had claimed that she recorded the meeting to ensure “accuracy”. The Authority held it was more likely to be a record of “her attempt to ambush Mr Matthews with her concerns”. Matthews had been induced to attend the meeting with Cliff under false pretences – that it was just a “catch up”, whereas Cliff actually intended to tell Matthews to stop harassing her.

The Authority held that Cliff’s behaviour was a breach of her implied duty not to act contrary to the trust and confidence inherent in her employment relationship. The Authority held that it may also have been a breach of her duty of good faith not to mislead or deceive.

However, it did not amount to serious misconduct in the Authority’s opinion. The reason? The recording itself did not disclose anything harmful to the employer’s interests. There was also no clear policy about whether recording was permitted on the employer’s premises.

Cliff’s recording may have caused disharmony in the employment relationship, but on its own would not have destroyed the trust and confidence between the parties.

Could policy make a difference?
In another case, an employee of tech giant IBM had stored a significant number of inappropriate images on his work laptop, along with several secretly-recorded conversations of meetings with the management team.

The Authority found that the secret recordings were deliberate and sustained over a period of time, and amounted to a breach of good faith. Further, recording the conversations specifically breached IBM’s policy, which prohibited the use of recording devices without authorisation by management.

Although in many situations discovering that your employee has secretly recorded a conversation or meeting will be of significant concern, it is worth remembering that not every situation will warrant dismissal.

Consider your policies on the issue of covert recording and whether they will assist you, should the situation arise.