Opinion & Analysis
OPINION: Formal pre-employment screening such as checking criminal records, credit histories and references will only ever tell you so much about a candidate, but a simple Google search, scan of LinkedIn, or browse of the applicant's Twitter feed or Facebook timeline - all publicly available - can fill in a lot of gaps.
How reasonable are these screening methods, and what can be done if something untoward is revealed?
While a casual social media trawl by the human resources department is now a common feature of recruitment processes, it remains untested in New Zealand employment law.
At its most basic, it amounts to an employer collecting personal information about a prospective employee. Under the Privacy Act, collection cannot "intrude to an unreasonable extent upon the personal affairs of the individual concerned". Or, to put it more bluntly, it may well provide an entertaining, salacious and gossip-worthy spark in an otherwise vanilla recruitment process, but is it actually relevant or necessary?
If the information is in the public domain (like a public Twitter feed) then, on the face of it, it's fair game, and on a global scale. But prospective employers still need to avoid making employment decisions on the basis of common - but potentially discriminatory - social media content relating to an applicant's age, sex, race, sexual orientation, religion or political views.
Formal screening for criminal convictions, on the other hand, is sensible and reasonable for certain roles or organisations, and a statutory requirement for others.
The process itself can take time, however, and a recent Employment Relations Authority decision reinforces the importance of taking that into account in making offers of employment.
Jason Richardson was a tanker driver who applied for employment with Fonterra. He had previous criminal convictions for driving offences, and had been to prison. However, on the basis of his wife's belief that the Clean Slate Act would suppress that rather colourful history, he consented to a criminal record check.
He also ticked a box on the application form to state that he had no criminal record.
In between ticking the box and the completion of the formal check, Richardson was unconditionally offered, and accepted, employment with Fonterra as a tanker driver. One month later, all parties learnt fully and finally that the Clean Slate Act didn't apply because prison time had been served.
Fonterra moved quickly to dismiss Richardson on the basis he had misrepresented himself during the recruitment process. The problem, however, was that Fonterra had chosen to employ him permanently, and with no conditions attached, even though the Ministry of Justice had yet to complete its check.
That problem was compounded by the employment agreement making no provision for termination for misrepresentation. Those problems led ultimately to a finding of unjustified dismissal.
The lesson for employers? Hold back on making any offer of employment until the screening report lands. If that isn't practical, then making an offer clearly conditional on receipt of a screening report that meets the employer's expectations will also provide an "out".
And, just in case something vital is missed or omitted in pre-employment screening, a sensible employer would also guard generally against false and misleading statements being made during the recruitment process by providing for summary dismissal if this is found to have occurred.
This is not to say that candidates must proactively volunteer unhelpful information about themselves, but if they knowingly provide misleading information, there is a good chance that dismissal will be justified, especially if the contract provides for this. The outcome in the Fonterra case may well have been different if there had been an express contractual clause relating to misrepresentation.
Everyone has skeletons in their closets, but an appropriately worded letter of offer and employment agreement can ensure the employer isn't stuck in a difficult situation when the ghost of an employee's past reappears.
From a candidate's perspective, voluntarily disclosing information about their past is always a difficult decision. If they disclose this information they might not get the offer; if they don't and their secret is later discovered, they may lose the job.
Employers appreciate honesty and may be willing to overlook an employee's colourful past if they show they have learned from it. Given that it is very difficult to keep anything secret these days, laying it out there from the start may well be the best approach.
Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers, dundasstreet.co.nz
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