Are you aware of your Legal Obligations when Recruiting?

Written by HR Advisor, Rebecca Brown
Did you know that any person can apply for any job position regardless if they have relevant experience or not, and that it is illegal to refuse an application (within a set time frame)? Did you know that candidates can request a copy of your interview notes after the interview?

Discrimination is against the law, and fines could apply to organisations and individuals that are found to have discriminated against a candidate, whether intentionally or not.

The current legislation can be a little overwhelming, especially when Commonwealth as well as State/Territory legislation needs to be considered.

The Equal Employment Opportunity (Commonwealth) Act 1987 states that:
“An employee’s gender, marital status, pregnancy, parental or family responsibilities, race, age, physical or mental disability, sexual orientation, transgender, political or religious beliefs, social origin, trade union activity or inactivity, or physical appearance will not form the basis of employment decisions”.

Here are some examples of what could be seen as discrimination during the recruitment process:

• A job advertisement for a retail sales position in a clothing store stating that only people who have a driver’s licence can apply, even though driving is not part of the job. On these grounds, Sandra – who has good retail experience – cannot apply for the job because she has a disability and is unable to drive.
• A company advertises a position stating that candidates must read and write in fluent Italian when it is not an inherent requirement of the role within the company.

In Willmott v Woolworths Ltd (2014), it was found that Woolworths discriminated against an applicant during their recruitment process. The Anti-Discrimination Tribunal (QLD) determined that Woolworths’ decision to request the candidate’s date of birth and gender information early on in the application process was unnecessary in determining the candidate’s suitability for the role. As a result, the applicant was awarded $5,000 in damages. This does not take into consideration the significant legal fees the business would have accrued, as well as the substantial time lost during the litigation process.

If you are running a campaign to recruit your next superstar, it is recommended that a Hiring Manager is appointed. Such individuals are aware of the legal implications of hiring new employees, which is vital because as a business owner you could be held vicariously liable for your employee’s actions and be subject to penalties and adverse publicity.

Here are some suggestions on how you can minimise the risk of a discrimination claim during the recruitment process:

Before you begin:

1. Make sure you have a clear Position Description (PD) for the role you are recruiting for, outlining the criteria and requirements of the role (i.e. the inherent requirements of the position prior to commencing recruitment). Ensure the PD outlines the Key Selection Criteria that will be used to select the most suitable candidate.
2. Select a diversified interview panel, and assign who will be in charge of making the final decision.
3. Create an advertisement outlining the inherent requirements of the role, and be sure to avoid restrictive or discriminatory terms. Examples of such terms include but are not limited to specifying the preferred race, age or gender of applicants, or sentences such as “join a dynamic young team” or “seeking a mature, experienced professional.”

During the screening stage:

1. Be mindful of personal bias, myths or stereotypes.
2. Evaluate applicants using only the pre-determined selection criteria.
3. Short-list applicants based on the inherent requirements of the role only – match skills, ability and experience with the requirements of the position.
4. Follow a fair and consistent process – ask the same questions to each candidate and allow each candidate an equal amount of time to answer all questions.
5. Be consistent with your decision-making.
6. Document candidate responses in a clear manner and include the reasons for making your decision.

During the interview stage:

1. Ask all candidates the same questions.
2. Avoid asking questions about personal background or characteristics, and only ask questions that relate to the requirements of the role.
3. Document candidate responses in a clear manner. After the interview, ensure to document the reasons for making your decision.

Below is an example of what would not be considered discrimination:

• Cynthia does not have a driver’s licence due to a vision impairment. She has recently applied for a sales job that requires travelling to customers in remote areas without access to public transport. The job advertisement stated that the role involves the use of company vehicles. As a result, the ability to drive can be considered an inherent requirement of the role (which requires a driver’s license). The company advised Cynthia that because she did not have a driver’s licence, she was unable to meet the inherent requirements of the role and therefore they would not proceed to the next stage of the recruitment process.

Best practice tips for your business:

• Implement, communicate and regularly review policies in your business, such as policies about unlawful discrimination.
• Ensure policies are clearly understood by all employees through regular training and review.
• Provide formal training to the management team and supervisors to ensure they are clear on their obligations.

For assistance with understanding your obligations or for further information, please contact Key Business Advisors at 1300 4 ADVICE, or by emailing info@keyba.com.au, to speak with one of our qualified HR Advisors.

To find out more about how to recruit STAR employees, don’t forget to sign up to our next Recruitment Training Workshop in Melbourne on Wednesday the 8th of June, 2016. https://keyba.com.au/training-dates/hire-star-employees/