This is a question many employers only think to ask after it has already happened. A meeting feels routine at the time, but later an employee produces a recording, or refers to something that was said verbatim, and it becomes clear the conversation was captured without anyone else knowing. With smartphones always within reach, secret recordings at work are far more common than many employers realise, particularly during disciplinary, performance, or grievance meetings.
In New Zealand, the law around recording conversations often comes as a surprise. New Zealand operates on what is commonly referred to as a one party consent basis. This means that if a person is part of the conversation, they can generally record it without needing to tell the other participants. From a strictly legal perspective, an employee who records a meeting they are involved in is not usually breaking the law simply by making the recording, even if the employer was unaware.
However, what is lawful is not always appropriate in the context of an employment relationship. Employment relationships are built on trust and good faith, and a secret recording can significantly undermine that trust. Employers are often less concerned about the recording itself and more concerned about what it says about the working relationship, the employee’s intentions, and whether the employee felt unsafe, mistrustful, or unfairly treated. These factors are often far more important than the technical legality of the recording.
Whether a secret recording amounts to misconduct depends heavily on the circumstances. There is no automatic right for an employer to discipline an employee simply because a recording was made. The purpose of the recording matters. If an employee recorded a meeting because they felt vulnerable, confused, or anxious about what was being discussed, the Employment Relations Authority is likely to view the behaviour differently than if the recording was made to entrap, intimidate, or misrepresent the employer. The presence or absence of relevant workplace policies, such as privacy, IT use, or standards of conduct policies, will also be relevant.
Employers are often surprised to learn that secret recordings are frequently allowed as evidence in Employment Relations Authority proceedings. Even if the recording was made without the employer’s knowledge, the Authority may still consider it if it is relevant and reliable. Attempts to exclude recordings on principle alone are often unsuccessful and can sometimes make the employer appear defensive or dismissive of the employee’s concerns. How an employer responds after discovering a recording can be just as important as the recording itself.
When an employer becomes aware that a meeting has been recorded, it is important not to react emotionally or take immediate action without advice. Accusing an employee, threatening discipline, or demanding deletion of the recording can escalate the situation and increase legal risk. A more measured response involves understanding why the recording was made, reviewing any relevant policies, and considering the broader context of the employment relationship. In many cases, the recording is a symptom of a deeper issue rather than the core problem.
There are practical steps employers can take to reduce the likelihood of secret recordings becoming an issue in the future. Clear communication about meeting processes, offering support persons, providing written summaries, and creating an environment where employees feel heard can all help. Some employers choose to be upfront and state that employees are welcome to record meetings if they wish, which removes secrecy from the process and can actually reduce mistrust rather than increase it.
Ultimately, secret recordings at work are uncomfortable, but they are not automatically fatal to an employment relationship. The key risk for employers lies not in the existence of the recording, but in how they respond to it. Taking a calm, fair, and informed approach, and seeking advice early, can prevent a difficult situation from becoming a costly one.
If you discover that an employee has recorded a meeting, or you are concerned about how to handle sensitive workplace conversations, it is often worth getting advice before taking any action. A considered response can make all the difference. Get in touch if we can help.
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