Employment reference no longer confidential

Employment matters with thanks to Chapman Employment Relations

An interesting (in our view disturbing) case from the Human Rights Review Tribunal which suggests references and the details of other candidates in a recruitment process are not as confidential as we all thought.

Kevin Waters, aged 62, unsuccessfully applied for two positions with Alpine Energy, a company he previously worked for 21 years until 2008.

Mr Waters believes he was not successful because he was discriminated against on the grounds of his age, and has taken the issue to the Human Rights Tribunal. As part of this process Mr Waters required Alpine Energy to disclose all information relating to the recruitment process, including the CV’s, interview notes and references of the other candidates. Alpine Energy refused, saying the information was confidential (as per the Privacy Act) and could not be released. Mr Waters challenged this at the Tribunal, seeking an order to compel Alpine Energy to release the information.

At the tribunal one of the referees gave evidence they would not have provided the information if he had known the information could be released to other parties. As Alpine Energy had used a recruitment agency they also said they did not believe they had to provide the information that was held by the recruitment agency, and had not been provided to Alpine Energy.

The Tribunal disagreed, ordering the documents to be released to Mr Waters, although with the applicant’s names removed.

This decision has caused consternation. What was thought to be sacrosanct is no longer the case. This case demonstrates that when litigation has commenced, the discovery process (where the parties seek all information relevant to the case) is far reaching.

It is important to remember that the case does not mean employers can release candidate details to third parties. There remains a duty to maintain privacy of candidate details under the Privacy Act. It requires an order from a judicial authority to allow release of the information. However ultimately it may be released and therefore be cautious with everything you record, always mindful of the interpretation a third party could place on the scribbling’s you thought were confidential.

You may also want to consider your policy on providing references, in the knowledge these may ultimately be released. An alternative is to only provide a statement of service, confirming dates of employment and position.

When the full case is heard we will let you know the outcome.