Privacy falls to security of job offer

OPINION: This week a Law Commission report on privacy laws and the role of the privacy commissioner commented on the complexities between privacy and other areas of law.

Privacy issues are often realised in employment, particularly with regard to the extent to which an employer might seek personal information about employees or applicants for employment. A July decision of the privacy commissioner provides useful clarity regarding pre-employment rights in relation to the collection of personal information.

An applicant at an educational institution was required to disclose whether he had any criminal convictions or convictions pending, as part of the recruitment process. He claimed the request was unnecessary and in breach of the Privacy Act.

The privacy commissioner disagreed. The commissioner held that the employer had a reasonable necessity to collect the information and was entitled to do so. In making that determination, the commissioner considered Principle1 of the Privacy Act which requires that personal information will not be collected by an agency unless it is collected for a lawful purpose connected with a function or activity of the agency, and the collection is necessary for that purpose.

The commissioner held that information was collected for the lawful purpose of recruiting staff, connected to the institution's function of educating people. The commissioner also accepted that collection of the information was necessary. The information was to ensure that the person hired to carry out a particular role was able to continue in that role upon appointment. The collection of information was to calculate the risk whether an employee would be able to continue in employment if criminal charges were pending and then found to be proven.

In coming to that conclusion, the commissioner took into account the institution's view the information was necessary because:

it had obligations to its employees and students; it had a statutory obligation to take reasonable and practical steps to ensure the safety of its employees and students;the impact of a conviction may mean the applicant could not work in the chosen field;the parties had an obligation to deal with each other in good faith; the disclosure of the information was important to allow the institution to safeguard its employees, students and business.

These considerations provide a useful guide for employers when considering what information might be sought from an applicant for employment. Employers are wise to protect their businesses through sound pre-employment processes. If a pending criminal charge may result in an applicant not being able to continue to work in the required role, it makes sense to obtain information to assess this risk prior to any offer of employment.
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- Andrea Twaddle is a specialist employment lawyer with Hamilton firm Harkness Henry and Co. Email andrea.twaddle@harkness.co.nz

- Waikato Times