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Must-know recruitment dos and don’ts

11 Apr 2017

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By Janice Hughes, Director, Aspiring Law

Was it really only 30-odd years ago we were fascinated by the fax, push-button phones were the bees’ knees and the big question was whether to buy a Beta or VHS video player?

The past three-or-so decades have been a roller-coaster of change in so many ways. It was as recently as the early 90s, employers could – if they so desired – more-or-less spell out they wanted a tall, slim, married Buddhist bloke, not less than 2.3m tall and certainly no older than 38, for a job.

Janice’s Lesson Number 1: Fast-forward a few short years to the new millennium. As a prospective employer, you shouldn’t even ask an applicant in casual conversation whether they have a spouse, let alone put it out there you are seeking an employee with certain physical or philosophical specs.

While employers have modified their systems, protocols and attitudes to accommodate the multitude of developments along the way, many have not quite kept up with the ever-changing times.

One common misconception – on both the part of employers and employees – is that their respective legal responsibilities kick in on start day. Uh-uh. If either party puts a foot wrong during the hiring phase, the law may very well come back to bite them.

No-go zones

Firstly, when employers are advertising or interviewing, aside from qualifications and skills, many areas are absolute no-go zones. The Human Rights Act 1993 prohibits a broad range of discrimination – including gender, age, disability, ethnicity, religion and political views. And, yes, to all those employers out there who persist with the “Married Couple Wanted” situations vacant ads, marital status is also verboten.

Wanton prejudice aside, there are exceptions where some level of discrimination may be legally acceptable on the grounds of, for example, safety or practicality.

Janice’s Lesson Number 2: No matter how genuine you believe your basis for a degree of discrimination may be, it’s wise to test drive your thoughts with your lawyer or HR adviser first. This area is fraught and you must ensure, firstly, yours is a case where discrimination is justifiable and, secondly, how to best couch your preference.

Anyone who feels they are suitably qualified for a position, but have missed out due to discrimination can lodge a grievance – even if they’ve never even graced your payroll.

With the pressures of business today, I know many employers find recruitment challenging and there’s often the temptation to fill the position as quickly as possible. But – and it’s a rather large “but” – cutting corners can cost you big time, big money and big stress.

Take the time

To that end, if you feel tempted to bypass the reference-checking phase, think again. Obviously, applicants with their head screwed on the right way will have included the most flattering recommendations.

You should not only contact the authors to authenticate the reference and ask them to speak to their testimonial, but you’re also quite within your rights to approach other previous employers, even if they’re not highlighted as a referee.

Janice’s Lesson Number 3: Referees can opt to speak “in confidence”. Take note: This is not some casual arrangement; it’s binding. You cannot disclose, no matter how tempting, to the applicant any aspect of the conversation at any time.

No matter how well an applicant presents, employers should also safeguard themselves with a police check of the candidate – only ever, though, with their written consent. Your lawyer should have copies of the forms needed.

There are also lessons for referees, here, too. Written or verbal references that don’t stack up might return to haunt you. If you’ve been way too generous in your praise, or too damning in your condemnation, you can be held liable, either by the potential employer or the applicant, if falsehoods are proven.

Good faith cuts both ways

The law also has expectations of applicants during recruitment. One of the most common downfalls I see are around rather hammed-up CVs. By all means, put your best foot forward when gunning for a job, just make sure it really is your own foot. In other words, embellish at your peril.

That course, for example, may look fantastic on your CV, but if you didn’t really attend and the boss finds out about it, your porky can be deemed serious misconduct and grounds for dismissal.

Janice’s Lesson Number 4: For both would-be employers and employees, that modern day employment catch-cry, “good faith”, is a pretty good compass to steer you in the right direction.

Just remember, whether you’re looking for work or a worker, you should set your “good faith” course and follow the letter of the law from the very beginning – and that’s well before the employer-employee relationship is formally signed, sealed and delivered.

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