The Human Rights Act says that it's illegal to discriminate on the basis of sex. This includes pregnancy, family status and marital status. You will probably say that all these factors can affect an employee's ability to attend work and can also affect them at work. So why can't you ask? The answer is because, 20 to 30 years ago, some politician thought it was a good idea.
Stick to the script and only ask directly relevant questions. There is nothing wrong in asking about an applicant's ability to commit to the business. Talk about the hours of work or the requirement to sometimes work after hours.
We already have too many women
A Hamilton car dealer, who employed many women, notified an applicant that they had enough women and would not be taking her application any further. The Human Rights commission was not impressed with this and the employer ended up paying the applicant compensation.
It is unlawful to discriminate under gender, therefore, do not advertise or tell an unsuccessful candidate that they were unsuccessful because of their sex. In some rare cases it is relevant to employ only one gender, for example a women's undergarment shop.
We will do a credit check
It is okay to ask for a credit check from applicants applying for roles that have financial risks (an accountant or credit controller), but don't ask this for other positions because the Credit Reporting Privacy Code 2004 can be used against you.
The Privacy Commissioner recently ruled that asking a person who's applying for a part-time retail role for a credit check is a breach of privacy. They said that the employer had no legitimate reason to undertake a credit check. The Commissioner also found that the request breached the Privacy Act because it was not lawful to collect the information for the position in question and the purpose for which the information was being collected was unclear.
Do you have a criminal record?
Yes; even criminals are protected under our current laws! The Criminal Records (Clean Slate) Act 2004 makes it illegal to discriminate against people with a criminal record of offences that occurred seven years earlier and had no sentence of imprisonment.
There is nothing in law preventing you from asking an applicant about their criminal history or for consent to access their criminal records to assess their suitability for a position. However, if you don't employ this person, for any reason, and they had a criminal record going back beyond seven years, they could challenge you for not employing them because of those convictions.
Remember you can only make those decisions for criminal offences that occurred within seven years and where no sentence of imprisonment was imposed.
Please provide your email and Facebook passwords
Most of us see this as crossing the boundaries of reasonableness; however, this year it has been publicised that some employers have asked for this information.
This is an obvious breach of a person's privacy and a breach of the Privacy Act.
Anyway, I do recommend you access media sites, like Facebook, to get more information about potential employees. This information is normally publicly accessible and able to be viewed easily.
Conclusion
The information you gather from an applicant during an interview usually determines whether you'll take their application further. What happens if they have lied to you? What happens if they have only given you selected answers and not revealed matters that will affect their ability to undertake the role?
There is a simple safeguard you can take - get the employee to fill in an application form that asks these relevant questions. This form will provide you with a record of their answers.
If an employee has provided false information then, provided the form notifies them that incorrect information will result in termination, you have grounds for dismissal.
Max Whitehead is an employment specialist who works with both employers and employees. You can contact Max at max.w@whiteheadgroup.co.nz or visit: www.whiteheadgroup.co.nz
