Posted on: Oct 29, 2014
Recruiting new employees
There are a number of legal requirements that have to be taken into account when undertaking recruitment. Of particular importance is the need to avoid acting in a discriminatory fashion and to ensure personal information is kept private. It is important to review all job specifications, advertisements and application forms to ensure they do not contravene the law.
When recruiting, employers must be guided by the Privacy Act 2003 which sets out various information privacy principles. The Privacy Act requires personal information to only be collected for a lawful purpose that is connected with a function or activity of the agency (an employer is an agency) and that the collection is limited to information necessary for that purpose.
In the recruitment context, this means that employers must only collect information necessary for determining an applicant’s suitability for employment. The agency/employer must collect such information directly from the individual concerned (unless specified circumstances exist). In addition, agencies are prohibited from collecting information by an “unlawful means” or by a means that are “unfair” or “intrude to an unreasonable extent” upon the individual’s personal affairs.
Prohibition on discrimination
Employers must ensure that advertising, selection and hiring decisions are made fairly and not based on unlawful discriminatory grounds.
The Human Rights Act 1993 prohibits discrimination on the grounds of sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status and sexual orientation. These same grounds of discrimination are also prohibited under the Employment Relations Act 2000.
During recruitment the focus should be on seeking information that enables an employer to best assess the suitability of the candidate for the specific role that is to be filled. Employers should not ask personal questions that are irrelevant to the position.
Recruitment processes can go wrong when applicants perceive they have been treated differently on the basis of any of the prohibited grounds of discrimination listed above. If an applicant alleges discrimination, that applicant is entitled to extensive information about the recruitment process, possibly including the CVs, application forms, employment history, listed qualifications, experience and other relevant information relating to the successful applicant (even if that applicant and employer believed that information was confidential). Employers must therefore be prudent about what is said and recorded in any job selection process.
Employers should therefore:
- Remember any email comments about job applicants may need to be disclosed. It is common for some negative or disparaging comments about job applicants to be included in email correspondence. This practice should be discouraged because it can leave a paper trail that may be subject to possible disclosure.
- Ensure that there are clear, cogent and justifiable reasons for declining any job applicant or making a decision about an employee’s ongoing employment.
- Remind hiring managers that everything that is written, stored and accessible about an applicant may need to be disclosed so any notes, correspondence and email communications should always be kept strictly professional.
In advertising a position, an employer must not use discriminatory language, mislead the applicant or breach an applicant’s privacy when collecting information.
The most important thing to remember when advertising a job is that it is an offence to specify any qualification or prerequisite requirement that has no bearing on the person’s ability to do the job, such as race or gender.
Specifically, it is an offence to publish or display any advertisement which could be taken to indicate an intention to discriminate on the basis of sex, age, marital status, religious or ethical belief, colour, race, ethnic or national origin, disability (whether physical or psychiatric), political opinion, employment status, family status, sexual orientation, or the presence in the body of organisms capable of causing illness, such as HIV or hepatitis.
Avoid indirect discrimination:
- Use words which have no gender, such as “person”, “operator”, “applicant” and avoid words such as “man”, “woman”, “boy” or “girl” unless it is genuinely required for the position.
- Do not use language which is indirectly discriminatory; eg, “motherly” or, in the hope of getting a male, “physically strong” if the job does not require strength. Such subterfuge is unlawful and will be considered discriminatory.
Criminal records check
Prospective employees who are eligible under the Criminal Records (Clean Slate) Act 2004 are entitled not to disclose any convictions they have had in the past. The Act establishes a clean slate scheme to limit the effect of an individual’s convictions, provided the individual meets certain statutory criteria. An eligible individual is deemed to have no criminal record for the purposes of any question asked about such a record, and is entitled to answer a question about criminal convictions by stating that he or she has no criminal record. The Act requires government departments and agencies to conceal details of any such record.
An eligible individual is a person who has been convicted of a minor offence and who has completed a rehabilitation period (seven years without further conviction) since the date of the individual’s last sentence, or who is the subject of a specified order making him or her eligible, and who did not undergo a custodial sentence. (There is no clean slate for sexual offences or for disqualification from holding a driver’s licence.)
An eligible individual must, however, state that he or she has a criminal record in police investigations or court proceedings, when applying for a firearms licence, or when applying for particular types of employment involving the care of children or young persons, being a judge, joining the police or undertaking prison or probation work.
Generally employers can justify asking prospective employees whether they have any criminal convictions and/or any criminal charges pending (even though the prospective employee may be entitled not to answer truthfully) because this question may have some relevance to suitability.
If employers require a criminal records check to be carried out, the individual must give written authorisation for disclosure on the specified Ministry of Justice form.
It is an offence for someone without lawful authority to require or ask an individual to disregard the clean slate scheme when answering a question about their record and/or to disclose a criminal record when that person is entitled to non-disclosure by law.
The Human Rights Act 1993 provides that it is unlawful for employers to use any form of application for employment, or to make any inquiry of or about, any job applicant which indicates, or “could reasonably be understood as indicating”, an intention to refuse to employ that person by reason of any of the prohibited grounds of discrimination including disability.
However, employers can lawfully ask questions that are directly relevant to the applicant’s ability to perform the job. The Human Rights Commission recommends that employers make applicants aware of the requirements of the particular job, and then ask if they have any medical or physical conditions or disabilities that would prevent them from performing the job to the required standard.
Social media searches
It has become common, and legal, for managers to review publically available Facebook (or other social media) profiles, Twitter accounts and other sites and/or to conduct “Google” searches to learn more about job applicants. However, many people choose to keep their profiles private, especially on Facebook, so that only selected “friends” can view their personal information.
Employers should not ask job applicants to reveal their Facebook (or other social media) usernames and passwords so that the prospective employer can check their backgrounds. Employers who do that open themselves up to potential human rights and/or privacy complaints if they don’t hire the individual concerned. This is because the practice is likely to “intrude to an unreasonable extent” upon the individual’s personal affairs and/or to reveal information about their political opinion, religious belief, sexual orientation, race, and other prohibited grounds of discrimination.
Prospective employers should not ask applicants to “befriend”, for example, the Human Resources Manager, so that the applicant’s Facebook page can be scrutinised.Employers must also not ask someone else who is connected to a prospective employee on Facebook to go though and look at their personal profile, or request private information to be relayed back to the employer. Only publicly available information can be lawfully viewed.
In order to avoid liability under Principle 2, employers must contact referees only with the express consent of the applicant. Similarly, contact should not be initiated with a present or past employer without first consulting the individual concerned.
When seeking information from referees, it is important to ask them the basis on which the information is being provided. Ideally, the referees should be asked if they are providing this information on the basis that their name, or the information which they provide, or both, will be kept confidential, or if they are happy for the applicant to have access to their comments. The referees’ wishes must be recorded. This will remove doubt about whether the employer is able to withhold the information should a request for the information be subsequently received under Privacy Principle 6.
To avoid breaching the Privacy Act 1993 principles, credit checks should only be carried out if necessary for the position and with the permission of the prospective employee. Under the Credit Reporting Code 2004, employers can only access credit information where a job involves a “significant financial risk to the employer”.
It is unlawful for an employer to employ a foreign national who is not entitled to work in New Zealand or entitled to work for that employer. Employers should take the following steps:
(1) Ask if the person is entitled to do the work.
(2) Seek documentary evidence of entitlement.
(3) Keep a record of the evidence.
The Department of Immigration has an online service, Visaview, which lets an employer check a prospective employee’s entitlement to work in New Zealand for that employer. Access to Visaview can be obtained through the Department’s website: www.immigration.govt.nz.
As you can see there are many legal considerations with regards to recruitment, however many of which in all reality are common sense. If you treat applicants with fairness, dignity and respect during your recruitment process you will have the majority of the legal requirements covered. However, if in any doubt, contact one of our team for specialist advice.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.