To avoid getting into strife with government bodies, like the Human Rights Commission, Privacy Commission or the Employment Relations Authority, I recommend significant caution when interviewing potential staff.
Do you have any medical conditions?
While you do have a right to ask the applicant if they have any physical or medical conditions that could prevent them undertaking a position (stress-related difficulties for someone hoping to join the police force, or physical constraints for a person applying to collect road-side rubbish, for example), you can’t ask them to provide all their medical details. This is deemed far too broad by the Employment Court.
The Employment Court says that this type of broad question is in contravention to both the Human Rights Act and the Privacy Act as it could indicate an intention to discriminate on the grounds of disability or illness.
Questions should be related to the person’s ability to meet the demands of the position. If the work is physically demanding you could ask: “Are you aware of any health and safety issues that may impact on your ability to do the job?” In fact, in these circumstances you could lawfully request they undertake a fitness test or obtain medical clearance.
Are you getting married or having children?
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.
Recently a company defended itself to the Human Rights Commission by saying that they asked about future pregnancy in order to understand the woman’s “stability”. That response did not help.
Tread carefully when interviewing potential employees. Today, applicants often take rejection personally and search for any justification that will elevated disappointment and mend their egos. To survive this process, avoid asking any questions about family.
Stick to the script and ask 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 farther. 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 of only one gender, a women’s undergarment shop for example.
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, under the Credit Reporting Privacy Code 2004, it can be used against you.
The Privacy Commissioner recently ruled that asking for a credit check was a breach for a person applying for a part-time retail role. 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 for 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. However, this is a risk many employers are now willing to make due to high-profile cases where people have abused positions of trust and have been exposed as having criminal records.
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 being publicised that some employers have asked for this information.
This is an obvious breach of a person’s privacy. If you ask for this information, it would be a breach the Privacy Act. It could also place the person providing the passwords in breach of the social media site’s terms.
Anyway, I do recommend you access media sites, like Facebook, to get more information about potential employees. This information is normally publically accessible and able to be viewed easily.
Remember, you are not prevented by law from taking disciplinary action against an employee who makes defamatory statements about you through social media.
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.