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Employment Law: Disclosing information during the interview process

Before taking on a new employee, it is natural that an employer would like to get as much information as possible about the candidate before making the decision to hire. We need this information to determine whether the person possesses the necessary skills to do the job they are interviewing for, to ascertain whether the person would be a suitable personality or culture fit for the business, and to determine whether there are any personal or other issues that could interfere with the person’s ability to perform their duties. In light of the above, it is not unusual for questioning during interviews to become very personal and extensive. Employers however need to be careful of what is asked of a candidate during an interview to avoid claims of discrimination if the candidate is unsuccessful.

Section 6(1) of the Employment Equity Act protects employees and job applicants against discrimination on grounds such as race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth, or any other arbitrary ground. Such discrimination may occur either directly or indirectly, and may sometimes be difficult to identify on face value.­­­

For example, asking a female candidate about their family situation, whether they intend to start a family, or whether they have any small children, may give rise to claims of unfair discrimination on the grounds of family responsibility. This used to often be the case where females applied for senior managerial positions which were associated with high levels of responsibility, erratic or long working hours, and high levels of stress. It used to be considered that women with young children were not suited to such positions as they had a responsibility to take care of their children. This archaic mode of thinking and strict gender stereotypes no longer hold sway in our current society, and questions along these lines have no place in the interview process.

Asking a candidate about pregnancy is also not appropriate, or relevant, during the interview process, unless the job could be considered hazardous to a pregnant female. Where that is not the case, an employee is not required to disclose her pregnancy to an employer until one month prior to the due date. In the case of Mashava v Cuzen and Woods Attorneys, the employer had dismissed a candidate attorney for dishonesty due to her failure to disclose her pregnancy during the interview process. The court ruled that there was no duty on the employee to disclose her pregnancy at that stage, and the dismissal was ruled automatically unfair.

In the same vein, a job seeker has the right to privacy and need not disclose personal or private information that is not relevant to the position they are applying for. Medical conditions that a person has under control and would not affect their ability to work need not be disclosed. An office administrator position would for example not be affected if a person with epilepsy is on medication for their condition and does not often suffer from seizures. A criminal record should also be pertinent to the job applied for in order for it to be taken into account. A prior conviction for being in possession of dagga would not be relevant to an accounting position, however a conviction for fraud would indeed affect the person’s ability to do the job. It is important to assess relevance to the position before these elements are taken into account in making a decision to hire.

An employer is also fully within their rights to know why an applicant left their previous employment. It would affect the decision to appoint a person if they resigned from their previous position due to a better opportunity presenting itself, or if they were dismissed for negligence in conducting the same work they are applying for. This principle was confirmed in the case of Grobler v Anglo Platinum Frank Shaft.

It is important to ask job applicants about issues like medical conditions, criminal record, and reason for termination from the previous employer during the interview process and allow them to respond. If the questions are not expressly put to them, it may become difficult to take action against them later for misrepresentation. It is also important for employers to verify the information given by the job applicant before a permanent appointment is made. Where misrepresentation is identified, it is also very important that a proper process must be followed prior to action being taken. An employee is entitled to a disciplinary inquiry before being dismissed, and should be given an opportunity to state their side.

In order to guard against claims of discrimination flowing from the interview process, there are some principles that employers can adopt to avoid future problems:

  • All applicants should be subjected to essentially the same questions;
  • All candidates should be graded according to a clear, coherent and consistent scheme;
  • Refrain from asking questions that do not relate to the job but to other aspects of the employee’s life;
  • Avoid questions relating to vague concepts like ‘leadership skills’;
  • Keep questions as clear and direct as possible.

The main principle to bear in mind is that there is a balance between the job applicant’s right to privacy, and the employer’s right to make an informed decision. This balance will be decided with direct reference to the job that the employee is interviewing for, and whether their private information is relevant to that job. The key consideration in these cases will be one of fairness to both parties.

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