In the August HR Breakfast Club Forum, BAL’s Senior Associate within the Employment Law & Investigations team, Rebecca Richardson, presented on recruitment and references.

Some of the topics Rebecca covered included:

• What questions should be avoided in the recruitment process?
• Are documents collected during recruitment covered by privacy laws?
• What happens if you have relied on misleading and misrepresentative statements during recruitment?
• Should you give references? What are the dangers?

What Questions Should be Avoided in the Recruitment Process?

Section 351(1) of the Fair Work Act 2009 which provides that:

• An employer must not take adverse action against a prospective employee on the basis of the person’s race, colour, sex, sexual orientation, age, physical or mental disability marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.

Employer’s must avoid questions which require a prospective employee to disclose personal information which is not related to the relevant position.

Privacy Laws

If the Privacy Act 1988 (Cth) applies to your business, you must comply with the Australian Privacy Principles when handling ‘personal information’. The definition of ‘personal information’ is broad and encompasses information an employer collects about prospective employees.

What if an Employee Lies During Recruitment?

Disciplinary action may be taken by the employer if it discovers the employee was dishonest during recruitment.

The dishonesty does not have to directly relate to skills relied on to obtain the position.

Providing References

There is no general legal obligation to provide a reference for an individual. Although, refusal to provide a reference based on discriminatory reasons may breach anti-discrimination legislation.

Dangers arise if references are inaccurate. For example, if they are:

• Misrepresentative
• Misleading
• Defamatory
• In Breach of Privacy Law

If a referrer has provided an inaccurate reference, the individual may be liable for the economic loss suffered by the new employer.

A referrer should endeavour to provide a truthful, full, and frank assessment of the individual to avoid any unfavourable outcomes.

Defamation

A negative reference can cause serious damage to an individual’s job prospects. An individual who believes that a reference provided was inaccurate may make a defamation claim.

Statements that employers make in references may be protected by the defence of ‘qualified privilege’. This defence permits employers to disclose unfavourable information about an individual’s misconduct or performance. Employers cannot rely on this defence if they acted with ‘malice’ in making the statement.

To register for future HR Breakfast Club forums, visit our monthly forum page and register to attend.If you have any questions or wish to discuss your circumstances with a lawyer, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.