Disclosing the fact that someone has applied for a job without the applicant’s consent, even if by accident, is likely to breach the Privacy Act. An applicant may be applying for a job without their current employer’s knowledge. Thus, leaving a message with a manager or workmate at the applicant’s current workplace would be a breach of confidentiality.
When contacting referees proper procedures should be followed to ensure that the applicant’s privacy is protected. The Privacy Act requires that all personal information be acquired directly from the applicant or from those whom the applicant has authorised to give information. Accordingly, prospective employees should obtain the written consent of applicants before contacting referees.
A reader of this column queried whether a future employer may contact previous employers of the applicant who have not been listed on the CV. Generally, when applying for jobs, applicants list referees that the future employer may contact regarding their suitability for the position. It is highly likely that the applicant lists referees who will give the most favourable view of them to the future employer. Whilst it is beneficial for the employer to have all relevant information on the applicant in order to make the best choice as to who to hire, it is also the applicant’s right to have their privacy is protected.
Future employers should not contact unlisted previous employers. If you are the former employer that is contacted make sure that you have the permission of your former employee before you comment. If you talk about person information without that authorisation you will have breached the Privacy Act.
All information gathered about the unsuccessful applicants must be protected. The information should either be retained in a secure place until being destroyed, or returned to the applicant. Whilst unsuccessful applicants have the right to access most of the information held, disclosure of the contents of referee reports is not automatic. If a referee requested or implied that the report they made about the applicant should remain confidential, then it should not be disclosed to the applicant.
The Privacy Act requires that future employers to deal with the personal information of applicants with confidentiality and respect throughout the selection process.
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
