Posted on: Apr 22, 2014
It is not uncommon to see that when an employee is subjected to a disciplinary investigation process, he or she is advised to keep the matter confidential – or even instructed to keep all information relating to the matter strictly confidential. This can go as far as restricting the employee to only being able to discuss the matter with the employer, or the employee’s representative. The question is, without an express provision contained within an employment agreement or employer policy, are confidentiality instructions actually lawful and reasonable?
We have often advised that during a disciplinary investigation process, all matters relating to that process should be kept confidential. It would generally be in the employee’s best interests to keep the matter confidential – to protect their own reputation and confidentiality, to avoid unnecessary gossip and to interruptions to the workplace. It is also crucial to keep details quiet, so not to bias anyone that may need to interviewed as part of investigation, and in order for the employee to be subject to a truly transparent and unprejudiced process. For these reasons, employers have often issued a ‘lawful and reasonable instruction’ to ensure the employee keeps all related matters confidential, advising that if the instruction is disobeyed by the employee then he or she may be subject to disciplinary action up to and including summary termination of employment.
The Court may not agree with what the employer considers as ‘lawful and reasonable’ in such circumstances. Interestingly, in X v Auckland District Health Board, the Court has said quite blatantly that an employer is not entitled to ‘gag’ an employee from communicating about a process that affects the employee. In this case, the Court considered that an instruction not to communicate with others about the matter would not have been a fair and reasonable instruction. We therefore do not recommend employers issue an instruction to keep matters confidential, unless provided for under the employment agreement or a relevant policy.
However, in circumstances where the safety of an employee is potentially at risk, an instruction not to have any contact and communication whatsoever with the complainants and/or witnesses involved could be issued as a preventative measure in conjunction with a suspension (provided suspension is permitted under the employment agreement or relevant policy). This is because invoking a suspension will not necessarily prevent harassing behaviour. Even with the accused employee being removed from the workplace, harassment can easily occur through online forums and mobile devices, or through physical/verbal encounters outside of working hours.
Employers have a legal obligation to prevent harassment under the Human Rights Act 1993, the Employment Relations Act 2000 and the Health and Safety in Employment Act 1992. It is not appropriate for an employer to simply wait for a potential breach of a harassment policy to occur, when it is possible to adopt a proactive approach by highlighting concerns and requirements up front, and setting parameters for behavioural expectations. If the employer fails to take all reasonable and practicable steps to prevent harassment they could be seen to be breaching the Health and Safety in Employment Act 1992.
If in any doubt, contact one of our Associates to discuss the unique circumstances of your investigation, and we will advise you on how to best manage confidentiality during the process.
 X v Auckland District Health Board (2007) 8 NZELC 98,749 at 
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.