9.05.2018

INFORMATION OVERLOAD! KNOW WHAT YOU MUST DISCLOSE

What happens when an employee, or an unsuccessful candidate for a position, wants to see information relevant to their file or application that the employer considers is confidential?  The Human Rights Review Tribunal has recently considered this question.

A Brief History

62 year old Kevin Waters applied for two positions advertised by Alpine Energy Ltd (“Alpine”).  He was unsuccessful in both applications.  Mr Waters believed that he did not get the positions on account of age discrimination, so made a claim to the Human Rights Review Tribunal.

In order to progress his claim, Mr Waters asked Alpine to disclose all information relating to its recruitment process.  This included summaries of the job applications and, for all applicants, the referee checks and candidate summaries prepared by an external recruitment agency, as well as CVs and interview notes.  In short, Mr Waters’ view was that this information would help him establish that he was discriminated against on the basis of his age.

The Tribunal had already issued discovery orders in relation to some of the material, but Mr Waters became aware that Alpine had destroyed material relevant to his claim between the time his claim was made and the time the initial discovery orders were issued.

What did the Tribunal do?

The Tribunal noted that it had a broad discretion to receive any evidence that, in its opinion, would assist in dealing with the real controversy.  The Tribunal also noted that the Evidence Act 2006 applied to it as it does to a court.  In the circumstances, section 69 of the Evidence Act 2006 required the Tribunal to weigh confidentiality considerations (which were alleged by Alpine) against the need to prevent discrimination under the Human Rights Act 1993.  In completing its assessment, the Tribunal stated that there was no evidence put before it that the free flow of information between candidates, potential employers, and referees would be harmed by disclosing the information sought.  Further, the Tribunal noted that it was not necessarily determinative that the referee or candidate supplying information believed that they were doing so in confidence, and would not have supplied it had that confidence not been assured.

In addition, the Tribunal noted that a party is required to preserve evidence once proceedings are reasonably contemplated.

As a result of these considerations, the Tribunal ordered that Alpine disclose the information sought by Mr Waters.  On the basis that Alpine no longer had some of the information (recognising that it may not have been preserved), it additionally required Alpine’s recruitment agent to provide that information.  This included an order preventing Alpine from redacting the names of the other candidates.

In our view

The Tribunal’s decision has received a significant amount of attention.  For example the New Zealand Herald has no fewer than four articles on the case, including an editorial on 10 March 2014 calling for a “clear, fair legislative fix”.  Yet the decision in the circumstances should be of no surprise.

Human rights claims invariably require a comparison between the circumstances of the complainant and the similar circumstances of other people who have not apparently been discriminated against.  The Tribunal cannot ordinarily make that comparison in a vacuum.  As Mr Waters’ claim is that he failed to obtain a position because of his age, the Tribunal logically needs to compare his circumstances to other applicants, particularly those who were successful.

That appears to have been made difficult by Alpine failing to preserve that relevant evidence, which caused the orders to be wider than usual.

We note that the Tribunal did not appear to consider the Privacy Act 1993.  Under the Privacy Act, an agency holding personal information about an individual can refuse to disclose evaluative material.  An agency can also refuse to release information if it would involve the unwarranted disclosure of the affairs of another individual.  While the Tribunal has a wide power to give directions, those directions cannot be inconsistent with the Privacy Act.  The reference checking by Alpine’s recruitment agent is evaluative material, but Alpine does not appear to have objected to its disclosure on that basis.

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