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Employment Equity Act, 1998 (Act No. 55 of 1998)

Code of Good Practice

Integration of Employment Equity into Human Resource Policies and Practices

Part B : During Employment

17. Confidentiality and Disclosure of Information

 

17.1 SCOPE

 

17.1.1 This section deals with information employees are entitled to obtain from their employers and information employers may disclose about their employees.

 

17.1.2 The relevant provisions of Section 16 of the Labour Relations Act, 1995, apply to the disclosure of information in terms of this part of the Code, in addition to any other laws, including the Regulation of Interception of Communications and Communication-Related Information Act, 2002 and the Promotion of Access to Information Act, 2000.

 

17.2 IMPACT ON EMPLOYMENT EQUITY

 

17.2.1 When engaging in employment equity consultation, the Act requires that designated employers disclose to consulting parties all relevant information.

 

17.2.2 The object of disclosure is to make the process of consultation as participative and as meaningful as possible to ensure good faith engagement and to develop trust between employers and employees.

 

17.2.3 Timeous disclosure of information will facilitate consensus regarding appropriate employment equity initiatives to reduce challenges.

 

17.2.4 An employer must disclose information that is relevant and that is reasonably required by the consulting parties to engage effectively on employment equity.

 

17.2.5 Information is generally considered to be relevant if it is likely to influence the formulation, presentation or pursuance of a position or demand proposed by a consulting party in their deliberations on employment equity.

 

17.3 POLICY AND PRACTICE

 

Type of information

 

17.3.1 The employer can comply with many of these requirements by referring the consulting parties to the documents that contain the necessary information if they are reasonably accessible to such consulting parties.

 

17.3.2 Information should be supplied in a manner and format that are accessible to all employees in the workplace.

 

Confidentiality and Disclosure

 

17.3.3 Private, personal information is regarded as confidential information. It will include information that may be typically found in an employee's personnel file. This may include information concerning the employee's financial circumstances, marital circumstances, criminal record or health status (e.g. HIV and AIDS, alcoholism, etc.). The employer may not disclose this kind of information unless the employee consents in writing.

 

Collection and communication of employee data: Balancing the need for information against the right to privacy

 

17.3.4 Information is collected on employees from the time when they are job applicants. The collection and disclosure of information may in some circumstances violate the right to privacy. It is therefore important for employers to balance the need for requiring certain information against the need to maintain high standards of personal privacy and the confidences of third parties.

 

17.3.5 An employer should not collect personal information from employees, unless—
17.3.5.1 The information is collected for a lawful purpose that is directly related and necessary to implement employment equity in the workplace, e.g. for making recruitment, development and promotion decisions; and
17.3.5.2 The information is reasonably necessary for that purpose.

 

17.3.6 An employer may not collect personal data regarding an employee's sex life, political, religious or other beliefs, or criminal convictions, except in exceptional circumstances where such information may be directly relevant to an employment decision.

 

Security of disclosed information

 

17.3.7 Information collected on employees, such as race, gender, sexual orientation, religion, performance, training records, psychological assessments or health, or any other information imparted by employees to their employer, should be kept secure and only those entitled to see it in the course of their duties should have access.

 

17.3.8 For governance purposes, employers should ideally have a written security policy for the gathering and disclosure of information. Employers should keep a written record of the names of those, whether internal or external to the employer, to whom employee information has been revealed and for what purpose.

 

Employee rights

 

17.3.9 Employees should be afforded opportunities of checking the accuracy of their information and rectifying and updating it, particularly where it relates to employment equity.

 

17.3.10 Employees can insist on the rectification or deletion of incorrect or misleading information. Where information is corrected, those alterations should be communicated to subsequent users of the information.

 

17.4 KEY LINKS TO OTHER TOPICS IN THE CODE

 

17.4.1 Employment equity implementation - The disclosure of information by an employer must occur within the context of an employer's employment equity policies. Disclosure of information is a necessary pre-requisite to meaningful consultation by parties, as required under the Act.

 

17.4.2 Recruitment and Selection - Information about employees, which is collected by an employer during the recruitment process or during employment, must be collected for a lawful purpose and must be directly related to the function or job requirement.

 

17.4.3 Assessments - An employee's manager, with the assistance of an expert in testing, should only consider psychological assessments of an employee if the assessments are current.