Posted on: Apr 15, 2014
In an interesting Human Rights Review Tribunal case (Waters v Alpine Energy Ltd  NZHRRT 8), a prospective employer was recently ordered to disclose confidential information to an unsuccessful candidate for two positions. The information required to be disclosed included information about the successful candidates and information from referees – despite the usual expectation of confidentiality.
The candidate applied unsuccessfully for two jobs with a former employer (Alpine). He issued proceedings under the Human Rights Act 1993 and alleged he had been discriminated against because of his age. He said to progress his claim he needed information about the recruitment process, all job applications, referee checks, summaries of candidates prepared by a recruitment agency, CVs and interview notes for all the applicants. Alpine refused to supply the information on the ground it was confidential information and had been given with the expectation it would be kept confidential.
The man applied to the Human Rights Review Tribunal for an order that Alpine give further and better discovery. The Tribunal noted that, under section 69 of the Evidence Act 2006, it had a broad discretion to direct that confidential information not be disclosed, but considered the public interest in full investigation of unlawful discrimination outweighed Alpine’s claim to confidentiality. Alpine was ordered to give discovery of the CV, application, employment history, listed qualifications, experience and other information relating to the applicants who were appointed to the positions.
This decision by the Tribunal may well not be the last word on the matter. It is important to note that the Tribunal did not consider the ramifications of the Privacy Act 1993 nor the public interest in great detail, so this decision may not necessarily be followed. Usually, if specified by the referee, the information provided during a reference is kept confidential under the Privacy Act.
Prior to the controversial Vice Chancellor of Massey v. Wrigley and Kelly case, information about other candidates in a recruitment or selection process would have also been considered confidential. The Employment Relations Amendment Bill (currently before Parliament) specifies the information an employer is entitled to withhold so, if the Bill is passed, the Employment Relations Authority would not likely follow this Tribunal decision.
However, an employee claiming discrimination can choose to make a human rights complaint rather than raise a personal grievance. If the employee took that course of action, an employer who wished to resist such disclosure may have a tough fight on its hands!
We’ll need to ‘watch this space’ to see how confidentiality will be applied to recruitment, selection, and redundancy processes in the future.
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