Got it on tape: lessons on using covert recordings

Simon Lapthorne: no formal guidance in New Zealand

Employees hoping to rely on covert recordings as a "smoking gun" in an employment dispute should heed a recent ruling of a UK employment watchdog.

Britain's Employment Appeal Tribunal refused Ms A Vaughan’s last-minute attempt to admit 39 hours of recordings she made between herself and managers and colleagues at the London Borough of Lewisham.

Ms Vaughan wanted to submit recordings, stored on an iPod, as evidence in the Employment Tribunal to support her discrimination claim, but the employment judge refused her application.

On appeal, the EAT held that the judge had been right to refuse the application since she had not transcribed the recordings or highlighted which aspects supported her allegations.

Although it referred generally to the practice of secret recordings as “very distasteful”, the EAT outlined that if a more focused request had been made, with tapes and transcripts, then it could have been permitted.

Useful lessons for New Zealanders
Employment lawyer Simon Lapthorne it is becoming more common for covert recordings to be produced in the Employment Relations Authority, usually by the employee as a “smoking gun” to catch the employer out.

While mobile phones had made it very easy to record meetings and conversations,  New Zealand does not have formal guidance as to their use as evidence in employment disputes.

So the EAT's decision provides a useful indicator as to when a covert recording will be considered relevant and admissible - particularly because it had gone further in outlining procedural steps about providing transcripts in advance of the hearing.

“These recordings are often produced at the 11th hour as a smoking gun to ambush the other party without warning,” the senior associate at Simpson Grierson  says.

“The UK decision is suggesting it is appropriate to provide transcripts in advance and give the other party the opportunity to transcribe it as well and review the evidence.”

This process would also help to prevent lengthy delays and adjournments to allow for transcripts to be made and reviewed by the other side.

Mr Lapthorne says tribunals such as the Employment Relations Authority tend to be more relaxed than the courts in their approach to admissibility of evidence.

But the EAT’s decision broadly supports the approach New Zealand's employment watchdog has taken in regards to admissibility of evidence to date.

“The ERA has usually adopted the over-riding principle of fairness to both sides [of the dispute],” he says.

Secret recordings tested in Guy Hallwright case

Eleventh-hour covert recordings were an issue when Guy Hallwright took his former employer Forsyth Barr to the ERA last year, seeking reinstatement.

Before proceedings got under way in December, ERA member Rosemary Monaghan had to decide whether a transcript of a taped conversation between Hallwright and Forsyth Barr boss Neil Paviour-Smith could be introduced as evidence.

Hallwright taped a meeting with Mr Paviour Smith, where it is understood his employment with the firm was discussed, without Mr Paviour-Smith's knowledge.

Mr Paviour-Smith said he understood the conversation took place in confidence and wanted it excluded.

Ms Monaghan decided the transcript was inadmissible because it could not be separated from a ruling the ERA had previously made, and said she was concerned it had taken so long for the transcript to come to light.

"This kind of recording is made too often and really, it is unacceptable. The fact of the recording should have been disclosed at the time," she said.

When are taped recordings a risk?
Employment lawyers say requests to openly record disciplinary hearings are becoming more common in the workplace.

And if both parties agree to the recording, it can save many hours of debate about what was or wasn't said.

However, when one party makes the recording secretly, there is a risk they are in breach of the good faith obligations in the Employment Relations Act.

There is also the question of whether the ERA or the court will allow th recording to be used as evidence in a hearing down the track.

Employment barrister Catherine Stewart says this is assessed on a case-by-case basis.

In the case of Simms v Mount Eden Limited (2003), the Employment Relations Authority admitted as evidence a conversation between an employer and employee, tape recorded by the employee without his employer knowing, says Ms Stewart.

"The ERA commented: 'many may find the secret recording of a conversation unacceptable or even abhorrent', however in the circumstances of that case fairness was best served by admitting the tapes as evidence. 

"The authority stated that if the employee had made extensive notes of the conversations, those notes would be admissible as evidence. The employee chose instead to make a tape recording, and the element of unfairness was confined to his failure to advise his employer he was doing so."

The Authority applied an earlier decision from the Court of Appeal, Talbot v Air New Zealand, which held that the overriding principle must be fairness to both sides. In Talbot, the Court of Appeal  took into account factors such as: that the conversation was not intended to be confidential, that it was held on speakerphone, and the recorded party had not complained about the tape recording.

"Different circumstances might give a different result, however parties to an employment relationship should be aware of the risk that secretly recorded conversations could be admitted as evidence in a later court hearing. “

gbond@nbr.co.nz

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6 Comments & Questions

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A friend of mine was told to accept radically different hours by her employer. When she questioned his right to unilaterally change her hours he accused her of theft as a servant and used doctored video evidence from surveillance cameras as evidence against her in the Employment Tribunal hearing. The video showed her putting goods into her bag but failed to show her paying for them. The ERA accepted the so called video "evidence" as accurate and fined her thousands with costs awarded to the employer. The obvious question of why an employee would commit theft right in front of a series of security cameras she was fully aware of eluded the great mind deliberating on that tribunal that morning. My friend continues to suffer the effects of that injustice to this day. An expensive lawyer and falsified video footage won that day not good faith or fairness.

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It sounds like the tribunal members ability should be bought into question if the evidence was that flimsy. Shouldn't it be obvious that the cameras should have to show her entire journey out of the store, with no gaps in footage, to prove she didn't pay.

Usually if an employee makes a purchase it is recorded to apply an employee discount, if that document had been changed it would be fraud on the part of the employer and a prison sentence could be on the cards.

Tip - if they get a lawyer, make sure you get one too.

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The employer took a gamble of lying and it paid off. Who would you believe? A SME owner with his wife and an expensive lawyer in tow or a Maori woman service station attendant and her mate?

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Surely, if she paid for the goods she should have been able to produce a receipt, or she should have at least appealed the decision. how good was her legal advice or representation?

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Who keeps a receipt for a few goods for a few grocery items? She didn't. And she acted for herself with some support from a well intentioned friend. She couldn't afford a good lawyer.

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"...the Employment Relations Authority tend to be more relaxed than the courts in their approach to admissibility of evidence."

TRANSLATION:

The ERA allows law society members to avoid complying with common law standards of evidence and procedure but considers evidence from victims to be "unacceptable or even abhorrent".

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