16 Mar 2021, 09:00

A caregiver applied for a role at a care home. As part of the application process, they filled out a form consenting for management to carry out a Police background check on them. Unbeknown to the caregiver, no check was carried out. They were nonetheless hired and started shortly after.

More than a year later, the caregiver had an acrimonious employment dispute with the care home. During this period, management investigated the caregiver’s record.

The situation culminated when the care home gave the caregiver a print-out of a Police vetting report it had recently obtained. Management informed the caregiver that they were being dismissed due to their failure to disclose previous convictions, as well as inappropriate conduct relating to the employment dispute. 

The caregiver complained to our office.

The complaint

The caregiver complained that firstly, the collection of information by the care home was unnecessary as they had already worked there for more than a year. The second part of their complaint was that although they had consented to the initial Police background check, they had not consented to the check being carried out more than a year into their job.

They said that at the time they were interviewed for the job, they indicated they had previous convictions, which were of a nature that would not disqualify them from doing the job. They believed the care home was using the Police check as an excuse to fire them. 

They sought compensation from the care home for humiliation, loss of earnings, emotional trauma, and a breach of their privacy rights.

The privacy principles

This complaint raised issues under privacy principles 1 and 2 of the Privacy Act.

Under privacy principle 1, organisations must only collect personal information if it is for lawful purposes connected with their functions or activities, and the information is necessary for that purpose.

Under privacy principle 2, organisations must collect personal information directly from the individual unless it believes, on reasonable grounds, that an exception applies, such as if the person concerned gives the organisation permission to seek information from other sources.

It is also important to note that under privacy principle 8, an employer must take reasonable steps to ensure that information it intends to rely on is accurate, up to date, complete, relevant, and not misleading. There might be occasions when reliance on very old information about criminal offending is not justified in assessing a person’s suitability for a current job.

Our investigation

We contacted the care home which confirmed that it had collected information about the caregiver 14 months after they started their job.

It said it believed a background check had been carried out when the caregiver first started but when it checked its records, this had not occurred.

The care home claimed that due to “concerning events” relating to the employment dispute, they wished to check the caregiver’s file to see if there was any fraudulent or criminal behaviour on their file.

Our view

Regarding privacy principle 1, we did not accept that it was necessary for the care home to collect information about the caregiver from Police due to its concerns over the employment dispute. We therefore formed the view that there had been a breach of privacy principle 1.

Under Police guidelines, vetting requests must be made within three months of the date an applicant gives consent for it to be carried out. It was the care home’s responsibility to ensure it was aware of the requirements for obtaining the background check. It did not have permission from the caregiver to collect information from Police about them so many months later and it could not rely on any exception. We therefore formed the view it had also breached privacy principle 2.

We accepted that caregiver’s experience with the care home had caused them anxiety and humiliation and we were satisfied there had been an interference with their privacy.

The caregiver sought significant compensation from the care home. Some matters factoring into their request for compensation were employment related and not within our jurisdiction.

As we were unable to mediate the dispute, the caregiver was given a Certificate of Investigation which they could use if they chose to take the case to the Human Rights Review Tribunal. The file was then closed.