Barrister Kathryn Dalziel wrote a Letter to the Editor after reading last week’s article by Peter Cullen on Covert Recordings of Workplace Conversations and Breach of Trust.
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Dear Editor,
I was interested to read Peter Cullen’s article on Covert Recordings of Workplace Conversations and Breach of Trust (Legalwise News 10 January 2019). As Peter rightly points out, the law remains unclear as to admissibility of covert recordings by employees although, if admissible, there may still be issues for the employee in terms of breach of good faith.
For this reason and because nearly every employee carries a recording device (their mobile phone), I am surprised at the number of employers who have not addressed employee covert recordings in their codes of conduct. I often remind employees who are experiencing sexual harassment or bullying that they are carrying a recording device and, with no guidance by the employer about recording other staff, they may as well gather evidence before taking it to the employer.
Arguments about the employee’s breach of good faith can be addressed later, particularly if the recording uncovers harmful behaviour in the workplace which is far more serious than the exercise of covert recording. Through policy, employees can be required to obtain consent before they photograph, video, or audio record another employee or business owner. There should also be guidelines on use of work photos in social media etc.
Further, employers should consider special circumstances which allow employee covert recording where such an action is reasonably necessary for the detection of breaches of the employment relationship by people involved in the business such as breach of health and safety, theft, sexual harassment, work place bullying, or breaches of a disciplinary process. In those situations, the employee should be required to provide such a recording as soon as practicably to their manager or employer but otherwise keep that recording confidential.
Regards,
Kathryn Dalziel.
Contact Kathryn at kathryn@kathryndalzielbarrister.co.nz or connect via LinkedIn or Twitter
