It’s an ever changing employment landscape with ins, outs and roundabouts to constantly navigate.
Are you aware that there are protections for candidates / potential employees under the Fair Work Act and Regulations? The recruitment process is another area that can expose employers to a wide range of risks such as discrimination and breach of privacy. Seyfarth Shaw’s partner Justine Turnbull recently provided some valuable insight and clarification around pre-employment compliance risks which we wanted to share with our clients.
There are many scenarios where employers remain unsure of what the appropriate action is during the recruitment process and as a result open themselves up to unnecessary risk.
Having documented policies and procedures as well as clear record keeping during the recruitment process is extremely important to reflect a fair and consistent process. According to Justine Turnbull there are a number of pre-employment risks that we should all be aware of:
- Whilst it is ok to ask the question if a candidate has the right to work in Australia; it is not appropriate to request evidence until an offer of employment has been made.
- It is not unlawful to reject a candidate based on their level of spoken English if a good level is required for the position. However, be mindful that the question may arise as to what is determined as ‘good English’.
- Required medicals should be undertaken prior to an offer of employment being made.
- You do not have to provide feedback to unsuccessful candidates, but it is wise to prepare a response to demonstrate that the decision was made fairly and lawfully.
- When conducting social media checks, before using your findings to make a decision it is important to assess if anything you find will actually impact the candidate’s ability to do the job.
- There are many risks associated with requesting video applications – it could result in the employer being influenced inappropriately and therefore making a discriminatory judgement.
- Positive discrimination such as looking for a mature aged candidate to balance a team is possible. Employers however would need to carefully navigate the special measures exceptions to the federal and state discrimination laws.
- Refusal by a candidate to undertake a criminal history check is sufficient grounds to reject the candidate as long as the employer can state why the check is needed.
- Whilst not prohibited, it would be risky and strongly discouraged to ask a candidate if they have ever made a workers’ compensation claim. If the candidate was unsuccessful and the question was asked it could result in a claim of disability discrimination.
- If a candidate is unsuccessful, it is prohibited to keep their details on file without their consent.
These are just some of the many complexities that go hand in hand with employing and managing people. At Integrated Human Resourcing we provide employers with the expert guidance and support to minimise their risk in the employment relationship.
Visit our website www.humanresourcing.com.au to find out how we can help you. If you have any questions, please contact us on (07) 5510 4863 or via firstname.lastname@example.org
Source: A full account of Justine’s interview can be found at https://www.hrdaily.com.au/nl06_news_selected.php?act=2&nav=13&selkey=4200