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Privacy Laws and Pre Employment Checks - What's the Connection?

Let's be honest we've all done it, checked out that potential employee's FaceBook profile before they come in and inadvertently made a judgement call...harmless right? It seems this area around pre-employment checks and privacy laws maybe a bit more grey than black and white.

Finding a great candidate in this employment market, can be a dream come true, especially now when a lot of hiring is done in house. Making sure they are the right fit for the culture of the company, well that's a whole other set of issues and to be honest this is where pre-employment checks dominate the game.

So how do SME's carry out the necessary employment checks to safeguard their businesses, without breaching a candidate's privacy and of course staying in line with the Privacy Act 1988 (Cth) (''Privacy Act'').

General pre-employment checks include and aren't limited to psychological, medical, and functional assessments, review of a candidate's employment history, credit and criminal history, as well as their use of different social media platforms.

As an employer, it is vital to be aware of what is lawful and unlawful, and ensuring best practice when it comes to pre-employment checks. So where do you start?

Some areas are quite straight forward, for example a role working with children, for this, at a minimum there is a legal requirement to obtain a working with children clearance, national police check and legally the employer is required to verify new employees, prior to them commencing employment. Reference and qualification checks are also quite straight forward, as well as crucial to any best practice recruitment process.

A good example of why reference and qualification checks are so important would be the case in NSW in 2017, in very 'catch me if you can' circumstances it was discovered that an individual had stolen medical qualifications and fraudulently posed as a doctor in a number of different NSW hospitals. In July 2017 the Independent Inquiry by the Ministry of Health found that had there been greater scrutiny of the individual's resume and written references, the fraud may have been detected.

The pre-employment checking process can also determine whether an applicant is ultimately offered the role, so getting it right is important, not only for staying on the right side of the law, but also to negate any issues post-employment.

Another example of things gone wrong and non disclosure was in the case of Achieng v The Commonwealth of Australia represented by Centrelink [2010] FWA 5174, within this case, a Customer Service Advisor was dismissed, the decision was upheld after she failed to provide accurate information in her pre-employment check. The employee did not disclose that she went by another name and that WorkCover NSW had brought fraud proceedings against her. The FairWork Commission (then the FWA) held that the employee had concealed the use of her pseudonym and was ''patently dishonest'' in not disclosing the charges.

For some cases pre-employment checks also extend to pre-employment medical examinations. Employers need to ensure that the candidate is able to perform the inherent requirements of the role without risk or injury to themselves or their fellow employees.

As mentioned previously some common and non-exhaustive pre-employment checks, as long as they are within reason and appropriate to the role, could include an academic record, character reference, credentials, credit history, criminal history, employment history, medical screening, work with children check, passport check and psychological screening.

Handling Personal Information

According to Amy Zhang, Employment Lawyer for Harmers Workplace Lawyers, on hrmonline ''correct collection, use and handling of personal information is critical to ensuring compliance with the Australian Privacy Principles (APP). The APP sets out the rights and obligations for the collection, use and storage of private and confidential information, which covers most information that employers will obtain from prospective employees.

Non-compliance with the APP can result in complaints, regulatory action, compensation and penalties''.

''While not all employers will be required to comply with the APP, all employers should aim to comply as a matter of best practice. Compliance with the APP can also protect an employer from an adverse action claim pursuant to the Fair Work Act 2009 (Cth), or from a discrimination claim pursuant to Commonwealth or State anti-discrimination legislation, arising from an employer's inappropriate use of pre-employment information to discriminate against a prospective employee and reject their application on that basis''.

Employment checks should be conducted prior to the candidate being offered the position, and always after obtaining consent from the individual involved, this includes consent for contacting referees. Even when a recruiter is being used it is always a good idea and best practice to ensure as a business owner or manager you have made your own enquiries around qualifications, references or employment history!

Amy Zhang also says that ''It is important that although there is no prohibition on asking a candidate to disclose information regarding their criminal background or medical history, employers must ensure that they obtain consent from the candidate before such information is obtained and that the information is reasonably required. Otherwise, not only may the request be in breach of the APP, but employers may also be exposed to complaints of discrimination in the event that the request is not reasonable in the context of the job, that has been advertised''. Amy shares her top tips for employers below.

Tips for Employers

Given the potential issues that can arise and having regard to the obligations under the APP, employers should bear the following non-exhaustive matters in mind when seeking to conduct pre-employment screenings:

  1. Candidates should be made aware of all required pre-employment screenings at the earliest date possible. This can either be made available at the time the job is advertised or at the time of the first interview.

  2. Pre-employment screenings which are conducted must be reasonable and reasonably required to ascertain the suitability of a candidate for the role set out in the job position which has been advertised.

  3. Employers must maintain the confidentiality and sensitivity of information obtained during the pre-employment screening process and ensure that such information is not divulged in an unauthorised manner which is contrary to the APP.

  4. Employers must ensure information obtained in the pre-employment screening process is not misused.

  5. Employers should develop a best practice policy which covers the collection, use, protection and storage of pre-employment information.

  6. Employers should be particularly cautious in relation to the collection and use of sensitive information concerning a candidate's medical, criminal, racial and religious background.

  7. Employers should adhere to the APP during the pre-employment screening process.

For further information or assistance with the employee lifecycle within your business contact one of our local coaches for a chat.

For further information around the APP and privacy jump onto the OAIC website.

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