A recent Human Rights Review Tribunal decision has ordered a prospective employer to disclose to an unsuccessful candidate wide-ranging and confidential recruitment information about other applicants (both successful and unsuccessful) and from referees, according to Minter Ellison Rudd Watts partners Jennifer Mills, Megan Richards and Aaron Lloyd.
The partners say the decision signals a “significant development” in the nature and extent to which information concerning recruitment processes and decisions may be obtained by candidates.
“This decision creates an interesting precedent for the treatment of confidential and personal information,” the partners write. “It appears that the Tribunal did not specifically consider the implications of the Privacy Act 1993, which (amongst other things) allows an agency holding personal information about an individual to refuse to disclose information which is ‘evaluative material’, or if disclosure would involve the unwarranted disclosure of the affairs of another individual – signalling a public interest in withholding such information.”
Further, they say, the Tribunal’s decision requiring Alpine Energy to provide the recruitment agency’s candidate summaries does not expressly acknowledge that these summaries may hold extremely sensitive and personal information, such as the results of criminal or credit checks.
The partners believe the impact of this decision on the forthrightness of candidates applying for positions, and on referees providing comprehensive, free and frank feedback, could be substantial and say it also heralds a new approach to the treatment of confidential evaluative and third party information.
“This decision is also likely to have wide-ranging implications for employers (prospective or current) principals and recruitment agencies, and appears to go further than the information disclosure requirements under the Employment Relations Act (especially in light of the soon to be implemented proposed amendment to section 4 of the Employment Relations Act). This decision is also likely to be regarded as authorative in the Employment Relations Authority, but there is nothing to stop an employee alleging discrimination (under any of the grounds specified in the Human Rights Act) from choosing to bring his or her case before the Tribunal rather than the Authority.”
Background
The case concerned 62 year old Kevin Waters, who unsuccessfully applied for two roles with Alpine Energy Limited (for whom Waters had previously worked for 21 years until 2008). Waters subsequently commenced proceedings under the Human Rights Act 1993 alleging age discrimination.
Waters believed that in order to properly progress his claim he required Alpine Energy to disclose all information relating to the recruitment process, including a summary of the job applications, the referee checks and candidate summaries (for all applicants) prepared by Alpine Energy’s recruitment agency, and the CVs and interview notes for all the other applicants.
Alpine Energy refused to provide Waters with all the information he sought, being of the view that this information was confidential (and strictly provided with an expectation of confidence), and that some of the information was evaluative material and was provided to Alpine Energy (and its recruitment agency) in confidence.
In the end, the Tribunal ordered Alpine Energy produce all of the information sought by Waters, including the information held by the recruitment agency (as agent of Alpine Energy). The Tribunal’s order also prevented Alpine Energy from redacting the names of the other candidates (including the successful candidates).
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