Employers Cannot Be Compelled to Disclose Payslips of Third Parties to the Court
Background
The Petitioners were former employees of the Respondent. After resigning from their positions, they filed a Petition in the Employment and Labour Relations Court seeking declarations that they had been discriminated against on the basis of race and that the Respondent had unlawfully withheld their bonuses.
Subsequently, the Petitioners filed an application dated 2nd November 2020, requesting the Court to compel the Respondent’s Human Resources Manager to produce, for the Court’s inspection, sealed copies of payslips for three specific employees, who were not party to the suit.
The Respondent opposed the application, arguing that it amounted to a fishing expedition and that the documents sought were private and confidential.
Determination
Employee payslips are private and confidential and are legally protected under the Data Protection Act, 2019. Once they are brought to Court, whether in a sealed or open envelope, they become part of the court record, which is a public record. Their contents would be subject to public contestation during the hearing. Questions would be asked based on the contents of the payslips of employees who were neither parties nor witnesses in the Petition.
Payslips are issued pursuant to the law and reflect the remunerative terms of individual contracts. An order for their production is likely to pave the way for calls for the production of the employment contracts pursuant to which they were issued. Such an order would expose the Respondent to the risk of litigation by the three employees, under the Data Protection Act, 2019.
The Court further held that bonus payments are payable at the discretion of an employer. It was for the Petitioners to lead evidence showing that they were entitled to bonuses and that they had met the conditions for payment of those bonuses. If they claimed unequal treatment, it was for them to bring evidence of such unequal treatment. They should not rely on the assistance of the Court in gathering evidence of comparators
