Covert recordings: Are they admissible evidence?

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Requests to openly record disciplinary hearings are becoming more commonplace, but when one party covertly makes a recording can it then be used as evidence in a hearing with the Employment Relations Authority (ERA) or Employment Court?

McElroys Employment lawyer and Auckland District Law Society Employment Law Committee member, Christine Chilwell, told HRM while a secret recording would not necessarily be admissible due to the lack of consent, there have been cases in which they have been allowed on the grounds “it is the best evidence available”.

In the case of Simms v Mount Eden Limited the ERA admitted as evidence a secretly recorded conversation by an employee of their discussion with the employer as “fairness was best served by admitting the tapes as evidence”. 

However in the Hallwright v Forsyth Barr case the ERA ruled a transcript of a taped conversation between Hallwright and Forsyth Barr boss Neil Paviour-Smith was inadmissible. The tape had been made without Paviour-Smith’s knowledge and he argued the conversation took place in confidence and should be excluded. The ERA stated it had taken too long for the transcript to come to light.

Employees can ask to record the conversation, however employers can refuse.  Chilwell said there is not much an employee can do in that case except ask for a protest to be recorded on the record.

If a meeting is to be recorded Chilwell advises it should be made clear from the start and it is preferable to have some form of agreement about the process that will follow e.g. the transcript will then be written up and provided to both parties.

While it can be expensive and time-consuming to have transcripts of recordings typed up, recording conversations and providing transcripts has it benefits according to Chilwell.

“It’s less open to dispute than somebody’s handwritten notes.”

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