Keeping it between boss and worker

20 July 2016

Hastings recounted that when he was editor of The Daily Telegraph, he received a tape of a conversation between convicted fraudster Darius Guppy and Johnson, where Guppy asked Johnson to obtain the address of a journalist so Guppy could give the man "a hiding". Hastings said that "Johnson did not demur".

Hastings claimed that they called Johnson back from Brussels and asked him to explain himself.

Hastings alleged that Johnson's defence was that although he did not refuse to provide the information, he did not act upon it either, and the journalist was never attacked.

When Johnson's was asked why he did not flatly refuse Guppy, Hastings reports that Johnson said, "Loyalty. Loyalty to an old friend".

This is interesting as employers do not often comment on their former staff members.

From an employment law perspective the issue arising from this is, does an employer have the right to talk about a former employee to third parties? What limitations are on employers in such circumstances?

Defamation proceedings may regulate employers conduct to some extent but the high costs of proceedings, and the defences of truth and honestly held opinion limit a large number of claims.

In New Zealand, it is not uncommon now for employees to rely on the Privacy Act to make a claim against an employer who has made opprobrious remarks.

The Privacy Act effectively requires that employers should not disclose former employees' personal information unless they believe they have reasonable grounds to.

Reasonable grounds can include that the disclosure was authorised, or that the disclosure was necessary for a particular reason, such as to prevent a serious threat to public safety.

Where an employer releases information without having reasonable grounds, they may find themselves in trouble.

Readers might remember the distinctive New Zealand case where Karen Hammond claimed that her previous employer had breached her privacy.

Hammond had previously worked for New Zealand Credit Union Baywide (NZCU).

After resigning, she baked a cake for a colleague which had "NZCU f... you" and other derogatory terms written on the icing.

She posted a photo of the cake to her Facebook page, intending it to be seen only by her 165 Facebook friends.

Unfortunately for Hammond, NZCU's human resources manager found out about the cake and required an employee to log on to Facebook and access the photo.

The manager allegedly saved the image and then proceeded to distribute it among recruitment agencies, advising them against assisting her.

Hammond brought a claim to the Human Rights Review Tribunal.

The tribunal found that NZCU Baywide should not have disclosed the information in the manner it did, and Hammond was awarded a considerable sum of money: $168,000 in total for lost income and compensation for humiliation, loss of dignity and injury to feelings.

Could Hastings face a similarly successful claim if his actions had taken place in New Zealand? Probably not.

Most of the information used by Hastings had become public knowledge, despite some of the information originally being discovered through Boris' employment.

Hastings' article also indicated that he considered the possibility of Johnson becoming prime minister a serious threat to public welfare, but there are limited circumstances where public interest may justify a disclosure.

Although there is no overarching public interest rule, the Privacy Commissioner may authorise, on the basis of public interest, the disclosure of personal information that would otherwise breach the privacy principles.

However, it is essential to distinguish between public curiosity, for example, in hearing about Johnson's alleged sexual exploits, and public interest, relating to factors impacting on his ability to fulfil his potential office.

While public interest is recognised, public curiosity holds no special position at law.

Clearly it can be dangerous to talk about your former employees to the news media.

One has to be careful talking about them, without permission, to anyone. The most likely enquiry will be from prospective future employers. What you say does tend to get back.

Carefulness is wise. Often, silence is golden.