Secret Recordings in the Workplace

Secret Recordings in the Workplace: When Trust Is Breached

A recent decision from the Employment Relations Authority (ERA) has reinforced something we often say to clients: covert recordings have no place in a healthy workplace—and employers are within their rights to take them seriously.

In a world where phones are always within reach, it’s becoming more common for employees to record conversations. But when it's done in secret, without permission, it crosses a line—and can justify dismissal.

The Case: Intent Matters

In Downer v LM Architectural Builders Ltd [2025] NZERA 55, an employee set up her mobile phone to secretly record conversations in an open-plan office. It didn’t end up recording anything of substance—but that wasn’t the point.

The employer became aware of the recording, suspended the employee, investigated, and ultimately dismissed her for serious misconduct. The Authority backed the employer, noting:

“The act of attempting to covertly record colleagues was a fundamental breach of trust and confidence.”

Even though the device wasn’t successful in recording private conversations, the intention to deceive was enough.

What the Law Says

New Zealand employment law is clear on this:

• The duty of good faith requires employees and employers to be open, honest, and respectful.

• Secret recordings violate this duty—especially in contexts where people expect privacy.

• In some cases, they may even breach the Crimes Act 1961 if the person recording is not party to the conversation.

There are other ERA rulings that support this view. Covert recordings almost always destroy trust, and courts have found that’s enough to justify dismissal—if handled correctly.

What Employers Should Do

Handled poorly, a covert recording incident can backfire—either because of flawed process or unclear policies. Here’s what we recommend:

1. Take it seriously

Treat covert recordings as potential serious misconduct—but don’t skip the process.

2. Follow fair process

Suspension (on pay), proper investigation, and a formal disciplinary process are all essential. Even with clear evidence, procedural fairness matters.

3. Think about context

Privacy expectations vary what’s acceptable in a group Zoom may not be appropriate in a one-on-one meeting behind closed doors.

4. Have a clear policy

Outline when (if ever) recordings are appropriate. State clearly that secret recordings are prohibited.

5. Train your team

Managers should understand the risks and how to handle concerns if raised. Culture starts with clarity.

Quick Employer Checklist

• Do you have a policy on recordings?

• Is it covered in onboarding and training?

• Are managers confident investigating incidents?

• Are you prepared to act if someone crosses the line?

• Need help drafting or updating your policy?

Secret recordings are a red flag—for culture, for trust, and for legal risk. The good news? If employers act fairly, follow process, and set clear expectations, they’re in a strong position to respond.

If you're unsure where your policy stands or want support investigating a concern, we're here to help.

Contact the Knowhow team for practical, employer-first advice.