The Intersection of Privacy and Pre-Employment Checks
Let’s be honest—we’ve all been tempted to check a potential employee’s Facebook profile before an interview, making snap judgments based on what we find. But is this harmless curiosity, or are we treading into murky waters? The connection between pre-employment checks and privacy laws in Australia is far more complex than it may seem.
Finding the right candidate in today’s competitive job market can feel like finding a needle in a haystack, especially when much of the hiring process is conducted in-house. Ensuring that the candidate is a good fit for your company’s culture introduces another layer of complexity, where pre-employment checks play a critical role.
But how can small and medium-sized enterprises (SMEs) conduct these necessary checks without breaching a candidate’s privacy or violating the Privacy Act 1988 (Cth) (”Privacy Act”)?
Understanding Pre-Employment Checks
Pre-employment checks can include psychological, medical, and functional assessments, reviews of a candidate’s employment history, credit and criminal history checks, and even scrutiny of their social media activity.
As an employer, it’s essential to distinguish between what is lawful and what is not, ensuring that your practices align with best practices and legal requirements. So, where do you start?
Some pre-employment checks are straightforward. For instance, roles involving work with children legally require a Working with Children Check, a national police check, and verification of the new employee’s credentials before they start. Reference and qualification checks are similarly straightforward and vital for any robust recruitment process.
A striking example of the importance of reference and qualification checks occurred in New South Wales in 2017. In a scenario reminiscent of “Catch Me If You Can,” an individual was found to have stolen medical qualifications and posed as a doctor in several NSW hospitals. The Independent Inquiry by the Ministry of Health concluded that greater scrutiny of the individual’s resume and references could have prevented the fraud.
The pre-employment screening process can determine whether a candidate is ultimately offered a role, making it crucial not just for legal compliance but also to prevent issues that could arise after employment begins.
Another case that underscores the importance of accurate pre-employment disclosures is Achieng v The Commonwealth of Australia represented by Centrelink [2010] FWA 5174. In this case, a Customer Service Advisor was dismissed for failing to disclose that she used another name and that WorkCover NSW had pursued fraud charges against her. The Fair Work Commission (FWA) upheld the dismissal, labelling her non-disclosure as “patently dishonest.”
For some roles, pre-employment checks also extend to medical examinations to ensure that the candidate can perform the essential requirements of the job without posing a risk to themselves or others.
Common and reasonable pre-employment checks may include academic record verification, character references, credential checks, credit history, criminal history, employment history, medical screening, Working with Children Checks, passport checks, and psychological assessments.
Handling Personal Information
Amy Zhang, an Employment Lawyer at Harmers Workplace Lawyers, emphasises the importance of correctly collecting, using, and handling personal information to comply with the Australian Privacy Principles (APP). The APP outlines the rights and obligations for the collection, use, and storage of private and confidential information, encompassing most data that employers will obtain from prospective employees.
Non-compliance with the APP can lead to complaints, regulatory actions, compensation claims, and penalties.
While not all employers are legally required to comply with the APP, Zhang advises that all employers should aim to comply as a matter of best practice. Compliance with the APP can protect employers from adverse action claims under the Fair Work Act 2009 (Cth) or from discrimination claims under Commonwealth or State anti-discrimination laws, particularly when an employer’s misuse of pre-employment information leads to discriminatory practices.
Pre-employment checks should be conducted before offering the position to a candidate and only after obtaining the individual’s consent, including permission to contact referees. Even when using a recruiter, it’s best practice for business owners or managers to conduct their own inquiries into a candidate’s qualifications, references, or employment history.
Zhang also points out that while there is no prohibition on asking a candidate to disclose their criminal background or medical history, employers must ensure that such information is obtained with the candidate’s consent and is reasonably required for the job. Failure to do so may not only breach the APP but could also expose employers to discrimination complaints if the request is deemed unreasonable for the role in question.
Tips for Employers
Given the potential issues that can arise and the obligations under the APP, employers should consider the following best practices when conducting pre-employment screenings:
- Early Disclosure: Inform candidates of all required pre-employment screenings as early as possible, ideally when the job is advertised or during the first interview.
- Reasonableness: Ensure that any pre-employment screenings conducted are reasonable and necessary to determine the candidate’s suitability for the advertised role.
- Confidentiality: Maintain the confidentiality and sensitivity of information obtained during the pre-employment screening process, and ensure that such information is not disclosed in an unauthorised manner that would contravene the APP.
- Proper Use: Ensure that information obtained during the pre-employment screening process is not misused or applied unfairly.
- Policy Development: Develop and implement a best practice policy that covers the collection, use, protection, and storage of pre-employment information.
- Sensitive Information: Exercise particular caution when collecting and using sensitive information, such as a candidate’s medical, criminal, racial, or religious background.
- APP Compliance: Adhere to the APP throughout the pre-employment screening process to avoid legal pitfalls.
For more information or assistance with managing the employee lifecycle within your business, feel free to contact us for a consultation.
For further details about the APP and privacy, visit the Office of the Australian Information Commissioner (OAIC) website.