Австралия. Нельзя отказать беременной женщине в работе, только, из-за ее беременности, даже если выполнение должностных обязанностей могут причинить вред ее здоровью. Здесь, сам наниматель должен позаботиться о том, чтобы этой женщине были созданы все необходимые условия для защиты ее здоровья. Естественно, можно предположить, что степень указанной заботы не может превышать определенных пределов, которые можно посчитать экономически. Также, можно предположить, что не будет нарушением принятие на работу другого человека, который обладает теми же профессиональными возможностями. Нельзя задавать вопрос о планировании семьи. Однако, например, адвокат английской юридической фирмы, видео- интервью с которой помещено ниже австралийской публикации, говорит о том, что наниматель может обратить внимание, когда кандидат в работники сам говорит о планировании семьи. Эти и другие вопросы, связанные с процессом рекрутенга в Австралии и Великобритании, можно увидеть в приведенных ниже материалах. Нельзя в Великобритании задавать вопрос о здоровье работника, пока ему не будет сделано официальное предложение о принятии на работу.
Now that the Easter break has passed and business begins to ramp up for the remainder of the year, you might be considering adding to your workforce.
Or, you might need to replace a worker who didn’t live up to expectations and make it through their probationary period.
If that’s the case, how can you improve your chances of hiring the right person without breaking any laws?
Here are some tips and ideas on how to conduct a lawful recruitment process. The advertisement - what are my risks at the pre-employment stage?
The risks at the pre-employment stage really fall into two broad areas. The first is ‘false impressions’. You’re representing to the applicant or the employee that the role is something it is not.
For instance, you might infer that the new recruit would receive certain benefits and career opportunities, which leads you to a situation where the employee, down the track, argues that the job’s been misrepresented, giving rise to an action for misleading and deceptive conduct or breach of contract.
Conversely, the employee may turn out to be unsuitable for the role because they didn’t fully appreciate its requirements, you may then end up having to performance manage the employee out or dismiss them for lack of competency.
The second broad area of risk is if the employee doesn’t succeed in getting the role, and then seeks to make a claim that they were rejected on an unlawful basis. That is, that a particular protected attribute of the employee or personal characteristic that’s protected by discrimination law formed the basis of the employee’s rejection.
This, of course, leads to the need to adopt some of the precautions, which I’ll explain. What should I include when advertising a position?
There are some things that you need to include in the ad that are reasonably obvious, like the job title, the salary, the location. But an area that’s more difficult is when you’re specifying key requirements and competencies that are required for the role. The requirements can’t focus on the personal characteristics of an employee — particularly those personal characteristics that might be attributes protected by discrimination law.
The only circumstances in which you can put those requirements in is if it’s a characteristic essential to the requirements of the role. I’m talking here about age and gender — all these things are protected under discrimination law.
But, for instance, if you’re advertising for bar staff, you’re going to need someone who is over 18, and you’re entitled to indicate in the ad because that is a key requirement. What should I never ask during the interview?
This is a similar issue to what you need to consider when you’re thinking about job ads. You need to avoid questions that focus on attributes protected by discrimination law.
If you’re asking about someone’s intentions to start a family or their pregnancy or their gender or their race or their political opinions, then you can really only ask those questions if there’s a direct nexus between the information and the role to be performed.
It would be okay to clarify that the role could create risks for a pregnant employee. But again you need to be careful — because an applicant can’t then be rejected just because they might be considering starting a family, even if there are health and safety hazards for that employee.
There’s an obligation on you as an employer to take reasonable steps to try to accommodate that employee and allow them to perform the job.
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What other resources can I use to screen a prospective employee?
There’s a range of different techniques that are available to check the aptitude and suitability of a candidate, such as psychometric testing, aptitude assessment and the like. There are many external consultants who specialise in these areas.
The more traditional methods, of course, are resumes, face-to-face or telephone interviews, reference checking, criminal record checks, and background checks.
Social media is also a very common method for ascertaining the suitability of a candidate. A word of warning, though: privacy law generally requires that if you create a record of personal information about a candidate, you must seek to obtain that information directly from the candidate before you go elsewhere.
Therefore, it might be a good idea to get that candidate’s consent if you want to explore this area. This will avoid an argument that privacy law has been breached. Can there ever be legal grounds for discrimination?
The only circumstances in which you can engage in discrimination in a recruitment process are if the inherent requirements of the role mandate it, or it’s necessary to discriminate in order to ensure the employee, if they’re doing the job, can do so safely.
The ‘inherent requirements defence’, if you like, is a very narrow defence. You can’t make assumptions that certain people of a certain age are more appropriate or more suitable to perform a role.
The area of health and safety is even more difficult to establish as a grounds to discriminate. For instance, as I said earlier, if you’re employing a pregnant employee in a job that might present risks for her, there’s an obligation on you to take reasonable and practical steps to try to adjust the role so that she can perform it safely. It’s not enough for you to simply say that pregnant employees cannot perform this role.
In the area of criminal records, laws require you to discard spent convictions. In other words, you can’t say that simply because someone has had a brush with the law, then they cannot perform the role. You can only refuse someone for a role on the basis of their criminal record if it’s justifiable having regard to what the employee’s going to be doing.
There’s a lot more information in the Employment Law Handbook. The Pre–Employment Screening and Recruitment chapters are most comprehensive in providing information about these areas and others.
I recommend that you have a look and benefit from the practical tips we’ve contained in those chapters. You can even test out the Employment Law Handbook on an obligation-free trial, so you have nothing to lose.
Regards,
Charles Power
Editor–in–Chief Employment Law Practical Handbook
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