The Human Rights Review Tribunal recently ordered an employer to disclose to an unsuccessful job applicant alleging age discrimination, the names, CVs, qualifications and work experience of the successful job applicants. The Tribunal also ordered disclosure of the references obtained by the employer’s recruitment agency in relation to all of the job applicants (Waters v Alpine Energy Ltd, 20 February 2014).
Decided in the human rights jurisdiction as Mr Waters was a job applicant (and not within the definitions of an “employee” or a “person intending to work” under the Employment Relations Act 2000 (ERA)), there are parallels to the well known Employment Court decision in Vice-Chancellor of Massey University v Wrigley & Kelly. In Massey, the Court held that an employer conducting a restructuring should have provided the unsuccessful candidates with information concerning other candidates, despite confidentiality and Privacy Act 1993 constraints. In both cases, and despite the factual differences, unsuccessful candidates for a position have been able to obtain confidential and personal information about other applicants.
The Employment Relations Amendment Bill introduced in Parliament in April 2013 is proposing to amend the ERA to address the tension the Massey decision created between the approach now taken by the Employment Court in relation to disclosure of information under section 4 of the ERA, and the protection of personal information under the Privacy Act.
It will be concerning to employers that while the issues of disclosing personal information to unsuccessful candidates in Alpine Energy and Massey are similar, the different jurisdictions in which they are determined means that the approach of the Tribunal would not be affected by the proposed amendment. This could potentially create an inconsistency in the law, whereby unsuccessful job applicants are entitled to personal information and evaluative material about other applicants, while those employees that are unsuccessful in securing an alternative position in a restructuring as part of a selection process are not.
Waters v Alpine Energy Ltd
Mr Waters, aged 62, applied for two positions with Alpine Energy, an employer he had previously worked for over a number of years. Both of Mr Waters’ applications were unsuccessful, and he alleged that he was discriminated against by reason of his age (prohibited by the Human Rights Act 1993). Alpine Energy rejected his complaint, asserting that the appointments were made based on the person it considered best suited to the role by reason of qualification, experience and organisational fit.
Mr Waters’ complaint was progressing towards a hearing, with the initial discovery and disclosure of documents being given. Issues arose when Alpine Energy refused to disclose certain documents on the basis that they were either confidential information under the Evidence Act 2006, not within the company’s possession or control, or because the documents had already been destroyed. These documents all related to information about other candidates, including the successful candidates, which Mr Waters argued he needed in order to pursue his discrimination complaint. The documents contained the others applicants’ names, addresses, contact details, and information about their employment history, experience and qualifications.
The Tribunal has the power to regulate its own procedure however it sees fit, and has a broad discretion to receive evidence whether or not it would be admissible in a court of law. However, subject to this discretion, the Evidence Act applies to the Tribunal (in contrast, the Employment Court does not strictly follow the Evidence Act).
Under section 69 of the Evidence Act, the Tribunal can direct that a confidential communication or information not be disclosed. The Tribunal refused in this case to make an order that the confidential information not be disclosed. The Tribunal found that there was a public interest in preventing discriminatory conduct being hidden behind a cloak of confidentiality, and commented that the section was concerned with public interests not private interests. Implicitly, it viewed the maintenance of privacy and protection of personal information as a private rather than public interest.
In summary, the Tribunal ordered the disclosure of:
- all job applications, whether of successful candidates or not;
- the CVs, employment history, listed qualifications, experience and any other information relating to the successful applicants (although the case indicates that if certain documents had not been destroyed, Alpine Energy would have also been required to disclose the same information for unsuccessful applicants); and
- all documents held by the recruitment agency which came within Alpine Energy’s disclosure obligation, which includes reference checks made by the agency.
The Tribunal accepted (as Mr Waters did) that the addresses and contact details of the applicants could be redacted, but – strangely – found no reason for the names of applicants to be redacted. The Tribunal reasoned that “without the names of the applicants the information may be difficult to use or manage.” In practice, it seems that the use of aliases such as “Applicant A” could have mitigated potential privacy concerns of those individuals, while still enabling the information to be useable.
Massey, the Privacy Act and the Employment Relations Amendment Bill
In Massey, a significant decision for employers, the Employment Court held that an employer conducting a restructuring should have provided the unsuccessful candidates for selection to a new position with information concerning other candidates due to the good faith obligations under section 4(1A)(c) of the ERA, despite confidentiality and Privacy Act constraints. In the Court's view, there was no good reason to maintain the confidentiality of the information.
In Alpine Energy and Massey, the Privacy Act has taken a backseat to other legislation, such as the Evidence Act and ERA. Indeed, the Privacy Act itself states that nothing in principle 11 (which contains the requirement for an agency holding personal information not to disclose that personal information) derogates from any legislation that authorises or requires personal information to be made available.
Parliament is attempting to restore some balance to the protection of personal information through the Employment Relations Amendment Bill, which proposes to amend section 4 of the ERA to provide that an employer is not required to give access to confidential information if that information is:
- about an identifiable individual other than the affected employee;
- evaluative or opinion material complied for the purpose of making a decision that may affect an employee's continued employment;
- about the identity of the person who supplied the evaluative or opinion material; or
- subject to a statutory requirement to maintain confidentiality.
However, this amendment will only apply to individuals covered by the ERA, such as employees or those who have been offered employment. It will not affect unsuccessful job seekers who allege discrimination and request information about other applicants. This means that there may be a disconnect between the situation of unsuccessful job applicants (who would be entitled to personal information and evaluative material about other applicants), and employees who are unsuccessful in securing an alternative position in a restructuring selection process (who would not be entitled to personal information and evaluative material about the other candidates in that process).
Tips for employers
The disclosure of personal information about job applicants to other unsuccessful applicants is a difficult field to navigate. With the interests of the unsuccessful applicant in obtaining information, and the interests of other applicants (whether successful or not) in maintaining their privacy at odds, our recommendations for employers are:
- If the individual seeking information is already an employee, follow the principles of the Massey decision until the Employment Relations Amendment Bill is passed into legislation.
- If the individual seeking information is an unsuccessful job seeker, the Human Rights Act is the applicable legislation. The Tribunal may require disclosure as in Alpine Energy. It remains to be seen whether this decision will be appealed to the High Court.
- It may be prudent to seek legal advice as to whether or not requested information should be disclosed before proceeding to decline or grant a request, as there may be other exceptions to disclosure that apply (such as privilege).