Getting the basics right: Recruitment

In HRNZ’s first of a series of articles on getting the basics right, Jack Rainbow, Associate at Dundas Street Employment Lawyers, outlines the importance of getting the recruitment process in order from the very start.

Like all good relationships, a solid foundation from the outset is vital to ensuring a smooth road ahead. This is why it is important that businesses get their processes right from the beginning, starting with the recruitment process.

RECRUITMENT AND PRIVACY

Inevitably, recruitment processes involve the collection and use of personal information, which is governed by the Privacy Act 2020.

Any time an organisation collects information about an individual they undertake legal obligations as to how they deal with that information. It is crucial organisations have a privacy policy that addresses the reason they are collecting, storing, sharing, disclosing, correcting and destroying that information.

When seeking information from a prospective candidate, there are a few questions an organisation should ask itself first.

IS THE COLLECTION OF INFORMATION NECESSARY?

Information Privacy Principle 1, set out in the Privacy Act, holds that an organisation must only gather information for a lawful purpose connected to its function, and the collection is necessary for that purpose.

In respect of recruitment, when seeking information from prospective candidates, an employer can only collect information that is relevant to determining whether the employee is the best applicant for the job. An employer cannot intrude unreasonably into the affairs of the applicant where that information does not relate to their ability to perform the job. Asking questions that may, on the face of it, appear innocent, can land an employer in hot water where it is not necessary for purposes of the recruitment process.

In one example, an employer asked a prospective candidate several personal questions, including about his relationship with his wife and children. The candidate, unhappy with the questions, made a complaint to the Privacy Commissioner who ultimately found the employer had breached Principle 1 of the Privacy Act by collecting personal information that was not for a lawful purpose because it was not necessary for recruiting the relevant position and so went further than required.

COULD THE INFORMATION SUGGEST DISCRIMINATION?

It will come as no surprise that an employer cannot, subject to a few exceptions, discriminate in employment, which includes during the recruitment process. However, section 23 of the Human Rights Act 1993 also makes it unlawful to use or circulate an application form, or make an inquiry about any applicant, that indicates, or could reasonably be understood to indicate, an intention to discriminate.

But what is an intention to discriminate? In a nutshell, section 23 is intended to prevent employers from asking questions and seeking information that could be used to discriminate against an employee on one of the specified grounds in the Human Rights Act 1993.

For example, it would likely be unlawful to ask prospective candidates about their sexual orientation, because this information could be used by an employer to discriminate against the individual. Because the question has no relevance to the job, it could be reasonably understood to indicate an intention to discriminate. Otherwise, why ask the question?

In Imperial Enterprises Ltd v Attwood, the employer’s job application form asked candidates “Do you have any medical problems of any kind?”. Ms Attwood disclosed she had a hip condition that affected her ability to stand for long periods. But she did not disclose that she had dormant leukoplakia or irritable bowel syndrome. Ms Attwood was eventually dismissed after the employer learned about her non-disclosure on the basis that it breached their trust and confidence.

On challenge, the Employment Court found that the question in the application form was overly broad and indicated an intention to discriminate. The Court held:

“ The question does not provide any safeguards against discrimination on the grounds of disability including physical illness. It enables an employer potentially to reject an applicant on the basis that she suffers from a disability or medical condition even if it would have minimal or no impact on her job."

AM I AUTHORISED TO SPEAK TO THESE REFERENCES?

Reference checking is an integral part of any recruitment process verifying a prospective candidate’s qualifications and experience. The Privacy Act requires an agency to collect personal information directly from the individual concerned. Where you are collecting information from elsewhere, you must be sure you have the authority to do so.

When undertaking reference checks, be sure you have the express consent of the applicant to contact those references. The mere fact that a candidate has presented an employer with a written reference does not expressly entitle you to contact the author of that reference to verify it.

In one case, an employee had provided a list of nominated referees and a written reference from a former employer. However, the former employer was not listed on the nominated referee list. The prospective employer then contacted the former employer without seeking the consent of the applicant. The Privacy Commissioner in that case found the actions of the prospective employer were a breach of the Act, because the employer did not seek the information directly from the candidate nor did the employer seek their permission to collect information from the referee.

IS IT REASONABLE TO CHECK ON SOCIAL MEDIA?

The age of social media has well and truly dawned. With so many platforms out there, it is rare to find someone without any form of online presence. This has, in turn, resulted in a significant erosion of privacy where a quick Google search can tell you a lot about a prospective candidate for a role. However, be on notice that this sort of information gathering will still fall under the requirements and protections of the Privacy Act

Conclusion

Recruitment processes are essential, and organisations often want to be sure that the person they are hiring is the best person for the role, as well as a good fit with the team. However, employers must know their legal obligations when collecting and sharing personal information about prospective candidates. Employers do not have carte blanche authority to ask any questions or obtain any information they desire. Getting the process right from the outset will ensure the employment relationship gets off to the best possible start.

Jack Rainbow is an Associate at Dundas Street Employment Lawyers. Jack has strong experience in industrial relations, dispute resolution and providing highlevel, strategic advice. He partners closely with his clients, providing advice and assistance from start to finish on a range of complex matters.