Court takes broad view on an employers obligation to provide relevant information

A recent Employment Court case: Massey University v Wrigley has taken a generous view of the obligation to provide “relevant” information under Section 4 of the good faith provisions in the Employment Relations Act 2000 (the Act).

Section 4 (1A)c of the Act requires that:
An employer who is proposing to make a decision that will or is likely to have an adverse effect on the continuation of employment, to provide the employees affected with access to information, relevant to the continuation of the employees employment about the decision, and an opportunity to comment on the information to their employer before the decision is made.

The case involved a restructure at a University where existing employees who did the same job had to apply for a reduced number of positions. The University undertook a “contestable reconfirmation process” which was essentially a selection process to decide who would be retained. In the course of that process some employees requested information relating to themselves and to other employees involved in the process. This raised questions about the relationship between the rights and obligations of the parties under s4 of the Act, as well as privacy rights and obligations.

The employees had been consulted on the selection criteria and had been provided with information on the selection process and panel, as well as feedback on their applications and interviews. They were also given an opportunity to comment on that feedback. The unsuccessful employees sought more information on the selection process including interview and assessment sheets for the other candidates, as well as handwritten notes and the information in the minds of the selection panel that led to their recommendations.

The employer argued it had provided them with sufficient precise information. In brief, the employer also argued that the additional information requested was confidential and there was good reason to maintain that confidentiality.

The Court disagreed and held that “relevant information” was wider than “sufficient precise information” and that there was not “good reason” to maintain confidentiality.

Surprisingly, the Court stated that: “the specific provisions in the Privacy Act and the Official Information Act have no application to the Employment Relations Act.”

The Court also commented that:
“These are issues of very wide application and fundamental importance in employment law. Although they arise in this case in the context of selection for redundancy, they apply equally in other cases in which employment is at risk, including serious disciplinary cases”

The case applies to any situation when an employees continued employment is on the line, which covers not only restructuring, but also in instances of disciplinary actions. The implication for employers is that the generally accepted view of what is “relevant information” (in instances where the continuation of employment of the employee is being considered), is in fact wider than has been traditionally applied.

Potential impacts of the case could include an increase in requests for further information, beyond that which the employer provides, as well as a lengthening of restructuring and/or disciplinary processes due to requests for disclosure of all relevant information, and an opportunity to comment on that information.

Employers should take care in the planning and implementation of any restructuring process to ensure they comply with the required level of disclosure of information. We can certainly provide guidance in this area.