If a supervisor gives their employee their performance appraisal in a meeting while other employees are still present, is this a breach in confidentiality or the rights of the employee?
Hello, and thank you for your question.
I will start by saying that, because the nuances of every case are different, you should not rely on this information as advice or apply it to a specific situation without a more thorough in-person consultation with counsel. But that said, there is normally no breach of confidentiality by sharing an employee's performance appraisal with other employees--it is certainly in bad taste, but not illegal in most situations.
Are you in a union?
Unions sometimes have in their collective bargaining agreements procedures for performance reviews. Also, the employer may have an internal process that must be followed, or there may be a contract with the employee individually.
But absent an articulated restriction, an employer is free to share their assessment with other employees. It isn't advisable since it could expose them to a lawsuit for defamation of character if the assessment is objectively false, but it is not illegal per se.
So there is a written policy?
Is this policy contained in an employee handbook?
It is possible that an internal policy that is not posted in an employee handbook would create an expectation of privacy, and that a civil lawsuit could arise from a breach of that expectation of privacy, but I have to admit that it is difficult to provide a more definitive answer for any given case without viewing the intranet statement. So there is no absolute right, but where the employees are promised privacy with their performance appraisal, it is possible that the employee could sue for privacy invasion.
Does that make sense?
Very good. Did you have any further questions?
If an employees HR tells an employee that their performance appraisal would be in a confidential file and only accessible on a need to know basis, it would normally be very reasonable to expect that the information would not be disseminated to people who don't "need to know", wouldn't you think?
As I mentioned, the general rule under the law is that it is permissible, but there are exceptions to the general rule.
I emphasize again that any statements would need to be examined in their context by an attorney to assess whether an exception to the general rule may apply, but the potential can certainly be there.
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