Dear Reader
What questions can you ask a prospective employee?
Getting the right people on board in your business is very important. Especially since it isn’t always that easy to dismiss people once you’ve hired them! You can use application for employment forms to ask applicants a range of questions to help you in the selection process. But you must ensure all the questions are lawful. Here are some of the areas you must tread carefully.
Questions about disputes with previous employers
You can’t ask questions designed to establish whether a person has filed a dispute with the CCMA or a Bargaining Council in the past. This would infringe on his right to fair labour practice. The LRA provides the means by which employees may challenge the employer and you can’t penalize an applicant for employment for having exercised those rights in the past. This is stated explicitly in section 5 of the LRA. You also wouldn’t be able to defend this question in terms of the inherent requirements of the job.
You can ask questions about disability
The Employment Equity Act imposes a duty on designated employers to take affirmative action measures for, amongst others, persons with a disability. Therefore, you can justify asking whether or not a person has a disability with reference to your employment equity plan, but you must then have a plan and be able to point to the steps being taken to affirm people with disabilities.
To achieve the employment equity purpose you wouldn’t, however, need to know the nature of the disability. A question where the applicant is required to ‘describe’ the disability is a problem. You may argue that you need to know the disability to establish whether any accommodation is required and, if so, whether you can reasonably do so. Cover this by phrasing the question in this way: “If so, describe any accommodation you may require?”
You can’t discriminate based on a criminal record
You can check whether an applicant has a criminal record as this is a matter of public record. But, you can’t use the information to unfairly discriminate against someone. It would only be relevant if the nature of the offence for which the person was convicted means he’s unfit for the job he’s applying for.
You can only do financial checks in certain situations
Such checks could be regarded as an infringement of the constitutional right to privacy, unless you can justify that they impact the inherent requirements of the job. On the other hand, the Insolvency Act imposes certain restrictions on un-rehabilitated insolvents and disqualifies them from holding certain positions, e.g. a financial manager position. Verifying the status of an applicant would therefore be relevant for these kinds of jobs.
Detailed information about a person’s financial history and credit record is available from credit bureaux. However, the National Credit Act stipulates that a credit bureau can only issue a consumer credit report in prescribed circumstances. These include where the person is applying for a job that requires trust and honesty and entails the handling of cash or finances, and only with the prior consent of the job applicant. Limit the cases where you require consent to do credit checks to only those kinds of jobs.
You can’t do fingerprint checks
Fingerprint records aren’t generally accessible to the public. You shouldn’t compel an applicant to agree to having his fingerprints taken and don’t discriminate against him for refusing to do so, unless the inherent requirements of the job justify this.
You have to justify why you want to do a polygraph test
Our courts haven’t pronounced on this issue, but there appears to be no reason why you can’t ask an applicant for employment to submit to a polygraph test. If you can justify this with reference to the inherent requirements of the job you could refuse to employ someone who won’t take the test or who fails the test.
However, if an applicant has valid grounds for objecting to a polygraph test (such as religious objections), you must properly consider them and may not be able to deny employment based solely on a refusal to be tested. Also, if you only randomly apply the tests, there may be room for a claim of unfair discrimination. Valid and appropriate questions must be asked during the test process and it must be done by a registered professional.
Be very careful when it comes to employee privacy
Remember, employee privacy extends to job applicants. Don’t get caught out by asking for information that is irrelevant.
Taryn Strugnell
Labour Law for Managers
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