The Docket : Recruitment Interviews: Some Basic Legal Rules by Stefan Nerinckx (AmCham Connect : The HR and Talent Management Issue, January 2012, pages 10-12)
The The Docket
Recruitment Interviews: Some Basic Legal Rules…
Collective bargaining agreement number 38 on hiring and selection contains the basic rights and obligations of employers and prospective employees. A number of other laws also play a role, such as the Data Protection Act of December 8, 1992 and the Anti-Discrimination Act of 2007.
To put these laws into perspective, AmCham Connect talks with Stefan Nerinckx, a partner with the law firm Field Fisher Waterhouse LLP in Brussels and lecturer in employment law at the College-University of Brussel and also Vice Chair of AmCham Belgium’s Human Resources Committee.
According to Nerinckx, the legal nature of job interviews, personality tests and other selection tools are governed by the tensional interplay between the employer’s right to information and the employee’s right to privacy. “It’s like walking a tightrope,” he says. “The balance will err to one side or the other under the influence of certain factors that have to be considered in their context. Hence, each case has to be looked at on its merits.”
The Employer Must Investigate
On the one side is the employer, Nerinckx points out that there is a clear right to information: “It is logical that the manager of a company wants to know who it is he or she is hiring. The employers are not only entitled to information, they’re even subject to a duty of investigation since, while candidates by definition show their better side in job applications, the employer is obliged to find out the truth and get an accurate background on them – one cannot allow oneself to be led up the garden path.”
This duty of investigation has to do with the fact that employment contracts in Belgium are entered into on an intuitu personae basis: you choose a specific individual for a job. For a service, it’s different: if you board a bus, you just want to be taken from A to B, and in that case it’s, at least from a legal standpoint, unimportant who is doing the driving. For employers, an employee’s personality is also of importance. For instance, in the context of team work, to build a good team it’s necessary that the team’s members get along with each other. Their characters have to be compatible.
The duty of investigation means an employer may cast doubt and do checks on the information provided by an applicant. “If the applicant provides a reference, the employer may check it,” explains Nerinckx. “It does make sense and is good practice to also tell the applicant that you’re going to check their details. The same goes for verifying qualifications, at least if the educational establishment is prepared to give the information.”
Is Lying Allowed?
An applicant is under a duty to cooperate in the selection procedure in good faith and produce all necessary details of their professional and educational past.
If, in the applicant’s view, the details asked for have nothing to do with the job and they do not want to divulge certain information because it concerns matters of a private nature, they do not have to reveal it. “Even if providing such information will have no impact on the applicant’s chances of being hired, under these circumstances legal commentators state that an applicant may provide a false information,” says Nerinckx.
Nerinckx also mentions that an employer cannot select applicants on the basis of age, sex, marital status, medical past, race, skin color, etc. From this, it can be deduced that employers may not enquire into such matters except if the type of business calls for it. Typical examples include trade unions, political parties, health insurance funds, etc., as it is an inherent feature of such organizations that their very raison d’être is founded on a certain (religious, political or trade-union) conviction.
It seems clear that all the issues discussed above come down to the principle of relevance. The relevance principle, in short, determines where the line is drawn between the rights and obligations of the employer and those of the applicant.
“Questions probing into someone’s private life are only reasonable if they’re relevant given the nature of the job and the conditions under which it is to be carried out,” says Nerinckx. “Thus, in some circumstances, certain questions do have to be asked. The circumstances have to do with the nature of the job, the nature of the undertaking and the conditions for performing the job duties. Thus, for example, certain jobs may not be done by pregnant women. In this sense, it’s in the applicant’s interests to be upfront about these matters.”
Another example: is it reasonable to put new employees through a medical examination, such as requiring them to take an AIDS test? “No, this is ethically unreasonable and prohibited by law,” says Nerinckx. “In general, medical examinations are only acceptable in labor relations in very limited circumstances.
Nerinckx points out that there are exceptions. For example, an AIDS test may be allowed where the nature of the job is such that there is a real chance that the employee’s blood could come into contact with their surroundings.
“Overall, these basic legal principles do not just apply to job interviews, but also to questionnaires, tests and assignments used during assessments,” concludes Nerinckx. “In addition, it is explicitly stated that not only the employer, but also all those participating in the selection process on the employer’s behalf – such as psychologists and doctors – have to respect the applicant’s privacy.
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