Jennifer Wyatt Sargent of Wyatt Sargent & Associates Ltd provides advice on how to avoid discrimination and stay lawful during the recruitment process.
So you need to recruit someone. Are you aware that hiring managers tend to recruit people who are most like them? You might think the organisation would benefit from employing a string of “mini me’s” but most businesses thrive on having people from diverse backgrounds who can bring new perspectives to problems and come up with new ideas. You may not be the best model for this job.
The Human Rights Act 1993 protects employees and those seeking work against unlawful discrimination in employment. It means you cannot treat a job-seeker unfairly or less favourably than another person in the same or similar circumstances, or ask questions that might reasonably be assumed to show an intention to discriminate.
There are various ways of discriminating against people when recruiting, but focusing on the skills, experience and competencies required for the job will provide objective criteria to measure people against. The last thing you need is for candidates to think they have been treated differently because of their nationality, religion, age or appearance for example.
I recently participated in a LinkedIn group discussion around asking applicants about their health. It appears some organisations are using very broad questions, for example:
- Do you suffer from any mental illness such as depression, anxiety, or suicidal thoughts?
- Do you have or have you ever had cancer?
- Do you have or have you ever had OOS or other repetitive strain injuries?
- Do you have or have you ever had an infectious illness including TB, HIV or Aids?
My contribution to the online discussion was that I always ask whether the applicant has had an illness or injury that could be exacerbated by the duties and responsibilities of the position. On one occasion we had an excellent candidate for an Operations Manager position who had a bad back. He was offered the position subject to a satisfactory medical examination. He passed and has been an excellent employee. In another instance we had a position to fill and included the information that it was a fast-paced and stressful job in both the advert and the job description. That time we did turn down an applicant who disclosed a history of mental illness, due to the likelihood of the role exacerbating his illness. The outcome of the online discussion was general agreement that relating the health questions to the actual job is justifiable and can prevent a possibly disastrous health situation developing down the track. Anything more than that is unlawful and intrusive.
You can place restrictions on the employment of a person who is married to, living with or is a relative of another employee if those concerned would be in a reporting relationship. You can also discriminate if there is a risk of collusion between such employees to the detriment of the employer, e.g., signing cheques, and where there is a risk of collusion between related people who work for competing companies.
The Act protects people against age discrimination from the age of 16 onwards. There is no upper limit. However you can discriminate on the grounds of age in some circumstances, for example, if you are employing someone to do domestic work in a private home. Discrimination is permitted if it is a legal requirement that the position holder has attained a certain age such as when managing a liquor outlet or undertaking work in national security, or is under a certain age such as when flying commercial aircraft.
My advice is to avoid asking questions about religious beliefs or lack of them. If you are concerned about an applicant’s ability to work on religious holidays, you can explain how the shifts work and ask if this causes any difficulties. If the applicant’s religion prohibits work on, say, Saturday or Sunday, and it is possible to adjust their shifts to accommodate this you are expected to do so as long as the adjustment is not unreasonably disruptive. Similarly, if someone needs to pray at certain times you are expected to accommodate this if possible. Where space is at a premium a separate room may not be possible. Permit the time needed for prayer and allow them to find a space where they will feel comfortable.
You cannot ask applicants if they have children or other dependants or for information about dependants such as age. Ideally allow candidates to de-select themselves by using the advertisement and job description to inform prospective applicants of, say, hazards for pregnant women, overtime at short notice, weekend work, shift work, travel and the physical requirements of the job if relevant. If you provide such information then it is more likely that only people who are comfortable with the proposed conditions of employment will pursue their application. Remember that today more men share childcare responsibilities, so this is the safest way to weed out anyone – male or female – who is unable to commit to the role’s requirements.
You can only consider the applicant’s ethnicity if the job involves working with or counselling people on highly personal matters such as sexual matters or the prevention of violence.
A candidate’s sexual orientation can be considered if they are applying for domestic employment in a private household, or if the job involves working with or counselling people on highly personal matters such as sexual matters or the prevention of violence.
Ability to Work in New Zealand
You are permitted to ask if an applicant is legally entitled to work in New Zealand. You will be breaking the law if you employ an illegal immigrant. If documentation doesn’t check out, refuse to employ them.
Finally, ensure you ask all applicants the same questions because that way you are less likely to discriminate against anyone. Base your final decision on who has the right knowledge, skills and experience to do the job, if they are sufficiently motivated and conscientious, and whether their values and personality are a good fit with the organisation.
To discuss the information in this article or for more Human Resources advice please contact Jennifer Wyatt Sargent at Wyatt Sargent & Associates Ltd.