Impact of Legislation

Both the Human Rights Act 1993 and the Privacy Act 2020 have a major bearing on the recruitment process. 

Under the Human Rights Act, it is unlawful to discriminate against an applicant on a proscribed ground, for example sex, race, disability, age, marital status, sexual orientation. The requirement for an applicant to disclose information relating to a prohibited ground in an application form or interview could reasonably be understood as indicating an intention to commit a breach of the anti-discrimination provisions.

With regard to the Privacy Act, an application form may be used to collect personal information for the purposes of assessing suitability for employment in the position concerned. Only that personal information necessary for the purpose may be collected.

Recommended Approach

• An application form must not contain a question that suggests an intention to unlawfully discriminate. Questions about marital status, age, gender, number of dependent children, country of origin, nationality, current employment status and family status require careful review.
• The same degree of caution needs to be exercised with the wording of job advertisements, the writing of person specifications and the written briefings given to recruitment agencies describing the “ideal candidate”.
• Undocumented behaviour associated with the recruiting process including interview questions, telephone reference checking or verbally advising unsuccessful candidates may also be used by an applicant as evidence of unlawful discrimination.
• Only information on which an employer can lawfully base selection should be sought on application forms. Other information necessary to the employment relationship should be collected from the sole successful candidate at the time of induction (for example, information on next-of-kin). The same discretion applies to the handling of internal applications from existing staff for transfers and promotions.
• Application forms for unsuccessful candidates should be retained only for as long as necessary for evidence compliance and then disposed of securely.
• Long-term information that is acquired from successful applicants must be held securely. This information must be restricted to those people who require access and should only be used again where you are certain it is up-to-date. 
  
  

Reference Checking

Obtaining References

The need for effective reference checking prior to making an offer of employment cannot be over emphasised. However, the Privacy Act requires that the applicant must authorise the collection or release of personal information and it is better to have such authorisation in writing. This permission is usually obtained when the applicant provides the contact details for their referees and or during the application process.

Providing References

Unless provided for in the employee’s employment agreement, there is no requirement on an employer to provide an employee or ex-employee with a reference, whether written or unwritten.

Note: Our policy is to provide a certificate of service, not a full reference.

Case Law has established that a reference provider must state only what he/she honestly believes to be true. That means not being too generous in praise or too severe in any criticism. An employer (or anyone representing the employer) has a duty of care to provide information on employees that is both fair and accurate.

The Privacy Act limits the extent to which an employer (or anyone representing an employer) can disclose personal information about an individual. Principle 11 of the Information Privacy Principles (Limits on Disclosure of Personal Information) means that an employer cannot disclose personal information on an employee or ex-employee to anyone else without the authorisation of the employee concerned. Such an authorisation could be obtained in one of three ways:

• Checking first with the employee or ex-employee on each occasion a reference is sought before disclosing any information.
• Obtaining a written authorisation from the employee before he/she leaves the Company, allowing officers of the Company to provide references without seeking specific consent on each occasion.
• Asking the person seeking the reference to show evidence of their authority from the employee to provide the reference.
  
  

If you receive a telephone call seeking information on an employee, remember:

• There is no legal obligation to provide any information.
• The same rights and obligations under the Privacy Act apply to verbal references.
• Ascertain the identity of the caller (if in doubt, take the person’s name/phone number and arrange to return their call later – this enables a check to be made).
• If in doubt, be discreet rather than detailed (often it is what you don’t say about the person, rather than what you do say, that is most significant).
• Any information given must be fair and accurate and must relate directly to the question being asked. Don’t volunteer unsolicited opinions or information that is not requested.
  
  

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