Exemptions from non-disclosure

The general approach that employers should take to the disclosure of information about workers is that the information should not be disclosed unless after taking into account the worker’s interests, there is a legitimate reason for doing so. The Act sets out a number of circumstances in which, provided sensitive data are not involved, it is clear that the Act will not stand in the way of disclosure. One is where the disclosure is required by law whether as a statutory requirement or in response to a court order. The others most relevant to employers are;

• where the disclosure is needed for legal proceedings or prospective proceedings or for obtaining
  legal advice.
• where a failure to disclose would be likely to prejudice the prevention or detection of crime, the
  apprehension or prosecution of offenders or the assessment or collection of tax.

For the second of these exemptions to apply there must be a substantial chance, rather than a mere risk, that the matters referred to would be noticeably damaged by a failure to disclose in the particular case in question. There is though no requirement that the police or other law enforcement agencies are necessarily involved.

Employers should be aware that the exemptions do not impose an obligation to disclose. They merely
allow a disclosure to be made without the Act being breached. The choice remains with the employer
even if, for example, a failure to disclose would prejudice police enquiries. A court order would be needed to impose an obligation to disclose. Where there is a statutory obligation to disclose, the disclosure must be made.