Editorial: Job seekers need clear privacy law

The tribunal recognised applicants would probably have expected their personal information to be kept confidential. Photo / Thinkstock

Opinion

The law is not always an ass but it can produce an absurdity. The decision of the Human Rights Review Tribunal to make a company disclose to a failed job applicant the CVs and reference checks of others going for a job is an example.

The aggrieved party complained to the tribunal that he was discriminated against on the basis of age. He wants to see the credentials of others who applied or succeeded in the process. Under the court system's rules of "discovery", which the tribunal adopts, all information pertinent to an action needs to be handed over from the defendant to the plaintiff. The tribunal has dismissed an application from the company involved, Alpine Energy, to block that discovery under a section of the Evidence Act which covers confidentiality.

So Alpine and its recruitment agency must give the man the information it has on the successful candidate and those who contested and lost. This would include not only names, applications and CVs (although the tribunal and the failed job-seeker have agreed it need not include addresses and contact details) but also reference and perhaps security checks. If one of those who applied, in confidence, has a criminal record or a past debt, the information could be made available. Presumably, medical information, past behavioural issues or work performance details provided by former employers and referees would also fall under this other person's scrutiny.

The tribunal recognised applicants would probably have expected their personal information to be kept confidential.

"It is understandable ... that an application for employment would ordinarily have a reasonable expectation of confidentiality, as would a person providing a reference," it says. However, the Evidence Act did not offer confidentiality just because an applicant or someone receiving information wanted it to be so. Public rather than private interests were important.

It also found Alpine Energy had not shown other applicants would be harmed by disclosure of their information. The tribunal's main premise was over "public interest in preventing discriminatory conduct being hidden behind a cloak of confidentiality".

No doubt the tribunal is right about that and the Evidence Act's intentions on discovery. Yet, as law firm MinterEllison noted to its clients, it does not specifically consider the Privacy Act and its provision for an agency holding personal information to refuse to disclose it if it is "evaluative material". That law also makes withholding possible if handing information on would "involve the unwarranted disclosure of the affairs of another individual".

The extent of personal and sensitive information contained in many applications is about as close to the "affairs of an individual" as it is possible to get. This decision, should it stand, will put hurdles in the way of employers and would-be employees. Should they, could they, be upfront about their personal life and philosophies and with the people they offer as referees? Referees, too, may well shy away from providing pertinent or awkward assessments of candidates if their observations are not kept secret. Even the third parties in this process, recruitment consultants, are caught, having to consider the risk of handing over material they gather whether presented to an employer on a shortlist or not.

As MinterEllison points out, the Employment Authority is likely to view the tribunal's thinking as authoritative. Anyone alleging discrimination can take a grievance to the tribunal in any case, rather than down the avenue of employment law.

This is a complex legal zone of overlapping public and private interests and parallel laws. While the sanctity of anti-discrimination law and the principle of full discovery are vital, surely the discrimination against and invasion of others' privacy requires a clear, fair legislative fix.