Legal aspects in recruitment and selection
Johanette Rheeder

Recruitment generally entails a process undertaken by a prospective employer, or a recruitment agent who acts on behalf of the prospective employer to attract or invite a candidate to apply for a position, to screen, select, test (e.g. competency based testing or psychometric testing) and to appoint a qualified and suitable person for a job.

The stages of the recruitment process normally start with the prospective employer identifying a need (job or functions) which cannot be accommodated by current staff due to reasons such as resignation, retirement, dismissal or the need for new positions generated by restructuring or down scaling or growth.

The prospective employer will then do a job analysis and start developing person and key specifications for the job. This will result in the position being advertised with critical and non critical specifications. Most employers have a policy of first recruiting internally before the position is advertised externally or in the media.

The sourcing of candidates will take place through internal or external networking, advertising (internal and external) or other search methods such as head hunting. Candidates will then be matched to job requirements and screening of individual applicants will take place. Often more than one screening will take place, resulting in short lists being developed and presented to managers for interviews. Again, this can be done by the recruitment agent or the prospective employer.

Testing (skills or personality assessment) and assessment of candidates' motivations and their fit with organisational requirements or culture will also be determined by interviewing and other assessment techniques. Some candidates may be invited to more than one interview with different people.

The recruitment process is finalised with the making of job offers and the finalisation of the appointment and induction of new employees.

Depending on the size and culture of the organisation recruitment may be undertaken in-house by managers, human resource generalists and / or recruitment specialists. Alternatively parts of all of the process might be undertaken by either public sector employment agencies, or commercial recruitment agencies, or specialist search consultancies.

Discrimination and the right to privacy in the recruitment process.

THE EMPLOYMENT EQUITY ACT, 55 OF 1998

Unfair discrimination in the working environment is regulated by the Employment Equity Act (EEA). The EEA places a positive obligation on employers to find and eliminate unfair discrimination in the workplace an in its policies and practices. This process starts at the recruitment process already as the EEA protect job seekers against unfair discrimination and unfair medical and psychometric testing.

Chapter 2 of the Act, dealing with discrimination, applies to all employees, job applicants and employers or prospective employers. A job applicant for the purpose of the EEA is a person who applied for a position with an employer. Unfair discrimination outside the employment relationship should be dealt with in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000. A person who submits a CV with a recruitment agency, without applying for a specific position, can therefore not claim to be an applicant for the purpose of the EEA.
The EEA also defines the dispute resolution mechanisms through the CCMA and the Labour Court.

Every person applying the EEA must understand the definition of unfair discrimination to correctly apply the intention of the EEA. The courts will apply an objective test to determine whether an act amounts to unfair discrimination.

The discrimination clause of the EEA, section 6, prohibits unfair discrimination in that:

no person may unfairly discriminate, directly or indirectly against an employee in any employment policy or practice (from recruitment to exit) on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

The EEA deals with both concepts of fair and unfair discrimination and it is accepted that not all discrimination is unfair.

Direct and indirect discrimination:

Direct discrimination is easier to detect than indirect discrimination. This is the case where the employee or job applicant is directly discriminated against, e.g. “you are not appointed because you are pregnant”.

The act is clearly unfair as the reason itself is unfair.

Indirect discrimination is a subtler form of discrimination. The act itself seems fair, however when the effect thereof is investigated, it is clearly also discriminatory. For example: The employer makes a rule that its marketing department may only participate in functions with clients on Friday afternoons from 12:00 to 16:00. This seems fair from an operational view point; however, the indirect effect thereof is that the Muslim employees will be excluded from the marketing opportunities as they have religious activities on a Friday afternoon. Another example is an employer advertising a position for a prison warden to be of a certain height and weight, which might be discriminatory to women.

The difference between fair and unfair discrimination:

The definition specifically refers to “unfair” discrimination. It is therefore possible to fairly discriminate against a job applicant or an employee. There are two exceptions to unfair discrimination.

It is not unfair discrimination to:

  1. take affirmative action measures consistent with the purpose of the EEA,
  2. or to distinguish, exclude or prefer any person or applicant on the basis of the inherent requirements of the job.

Unpacking fair discrimination – Affirmative action measures:

Affirmative action by nature discriminates against white male employees. However, in terms of the EEA, affirmative action measures, consistent with the purpose of the Act, are not unfair discrimination. Affirmative action is therefore fair discrimination.

When recruiting employees, an employer must implement affirmative action measures on a fair basis before it will be able to claim affirmative action to be a ground of fair discrimination. Employers who randomly use affirmative action as an excuse might not pass the test of fair discrimination. Employers should take note of the fact that affirmative action measures, which are consistent with the Employment Equity Act, do not include random appointment of people without a proper plan to further diversity in the workplace. A much broader process is involved in order to ensure that the process of affirmative action is fairly applied by an employer when recruiting AA candidates and appointing them.

The EEA also requires affirmative action measures not to be an absolute barrier to non-designated groups.

This means that the white male will always have the opportunity to compete or apply for a position, but may fall out due to preference being given to the Designated group. Advertisements or recruitment procedures which exclude the white male or female from applying for positions or promotions may be unfair, as it constitutes an absolute barrier. The employer must be fair in the process it follows. It must therefore have an affirmative action plan or policy, which is fairly applied. The courts have also recognised that employers can employ targeted recruitment to achieve its affirmative action goals and measures.

Unpacking fair discrimination – Inherent requirement of the job:

The second bar against unfair discrimination is that of “the inherent requirement of the job.” This is a requirement that can easily be manipulated by an employer. It should however be mentioned that it is not the “nice to have” that we may write into job descriptions that will constitute an inherent requirement of the job. It is imperative that the employer, when recruiting employees, ensure that job descriptions and advertisements deal appropriately with inherent requirements of the job.

An inherent job requirement was held by the courts to constitute an absolute defence against unfairness. The onus is on the employer to show that discrimination is fair based on the inherent requirement of the job. The term: “inherent job description” is not defined in the EEA but it can be defined as particular characteristic which must be necessary for effectively carrying out the duties attached to a particular position".

Clearly an inherent requirement of the job is some requirement without which the position or the job cannot successfully function.

MEDICAL TESTING – SECTION 7

An employer may not perform medical testing, as defined by the Act, on an employee or job applicant without his/her permission unless, legislation permits or requires the testing, or such testing is justifiable in light of:

  • medical facts;
  • employment conditions;
  • social policy;
  • the fair distribution of employment benefits; or
  • the inherent requirements of a job.

What is typically referred to here is medical testing with regard to requirements of the job such as drivers who must have good eyesight, or serious infectious diseases such as Tuberculosis.

Employers falling under the Occupational Health and Safety Act or the Mine health and Safety Act, will require testing to comply with its obligations under these legislation, which will be permissible.

Testing with regard to the distribution of employment benefits for pension or medical fund purposes would also qualify in certain circumstances. Sub-section (b) of Section 7 allows for various factors, if applied in an objective and fair manner, to allow employers to test employees for certain illnesses. Medical testing or questions should not be conducted randomly without any inherent requirement of the job in question being kept in mind.

Pre-benefit medical assessments are acceptable before the employee becomes a member. This is to determine suitability for membership, not to assess the capability to perform the job.

”Medical testing” is defined by the EEA to include any test, question, enquiry or other means designed to ascertain or which has the effect of enabling the employer to ascertain whether the employee has any medical condition. It should be noted that this not only includes a medical test, but also any questionnaire or written or verbal enquiry into the medical condition of an employee.

PSYCHOMETRIC TESTING – SECTION 8

Psychometric testing of employees or candidates is prohibited unless the tests or assessments comply with certain requirements.

These tests must;

  • be scientifically shown to be valid and reliable;
  • can be applied fairly to employees; and
  • is not biased against any employee or group.

Examples of unfair testing are where the test favours knowledge that a specific cultural group would have, whereas other groups, not forming part of that culture, would not know.

This is not really a contentious issue as there are various psychometric and similar testing available in the market that has been widely accepted within an HR-related environment. It should be noted that the sections dealing with the provision of unfair discrimination, medical testing and psychometric testing also apply to an applicants. Therefore, any employer who acts unfairly against a job applicant with relation to either one of these subjects can be taken to the CCMA by a non-employee. This is the only instance where the CCMA will have jurisdiction where there is no employment relationship between the applicant and the employer respondent.

THE RIGHT TO PRIVACY DURING THE INTERVIEW

The EEA is clear that an employee must only disclose that information during an interview that is part of the inherent requirements of the job. A job applicant’s right to privacy must be respected and protected and only the inherent job requirements can trump this right. For instance, a person’s medical history and medical information is private, however, if it is an inherent requirement of the job or an occupational and health requirement not to have a certain condition, the employer can request the employee to disclose this information.

In terms of section 10 of the Constitution, anyone has inherent dignity and a right to have that dignity respected and protected. This will apply in the way the interview is conducted. Questions about a person’s sexual preferences, religion, and sexual orientation or HIV status may not only be discriminatory, but also tarnish a person’s human dignity.

Section 14 of our Constitution protects the right to privacy. Privacy has been defined in many ways, but in essence amounts to that part of the personal characteristics which are excluded by the individual from public scrutiny and of which the individual has expressed the will to exclude it from the public eye.

The invasion of privacy by way of interview practices resolves mainly around a violation of the individuals private actions, his private communications, beliefs, morals, being or personal preferences which does not relate to or have any bearing on the employer, its business or practices. It will amount to unfair discrimination if it is taken into account and held against the applicant without substance, therefore it is not an inherent requirement of the job.

How does affirmative action and skills shortage affect recruitment?

For the designated employer (with more than 50 employees or with an annual turnover more than what is promulgated in schedule 4 of the EEA), the prerogative to appoint the employee of his choice is limited to the extent that it has to comply with AA measures and targets in its Employment Equity plan. Every employer who has to comply with the EEA, should have a recruitment strategy dealing with affirmative action. In order to achieve equity and equality in the workplace, the employer may strive to achieve it through the recruitment of suitably qualified Affirmative action candidates. This strategy should be linked to the employer’s employment equity and skills plans. Affirmative action cannot be successfully implemented without a proper skills development strategy for AA candidates.

Various industries, such as the nursing and medicine, accounting and technical positions, experience shortages of applicants, including AA candidates, especially in rural areas and in smaller towns. The mining industry (Goldfields) has been increasingly more vocal about the skills shortages since 2012 also. The average skilled professional in mining is close to 50 and the “baby boomers” are reaching retirement age.

The result also being that the employer battle to reach its Employment Equity targets due to a skills shortage in the particular industry or geographical area. In other industries, the employment costs of AA candidates escalated, again making it more difficult for employers to employ suitably qualified candidates. Recruitment costs of candidates also escalate. For example, advertisements must be repeated, or placed in a wider range and more newspapers, the services of specialist recruitment agents must be obtained and the remuneration offer escalates.

SUITABLY QUALIFIED CANDIDATES

According to the EEA, suitably qualified employees from designated groups must have equal opportunity and be equitably represented on all occupational levels. The employer achieves this by appointing suitably qualified candidates, ether from the internal or external pool of candidates. This must be achieved through affirmative action measures being applied and implemented. The question to be asked is when is a designated person suitably qualified for a position? Clearly, designated people are previously disadvantaged and therefore do not have the necessary skill, education training, qualification or experience. If these qualifications are set for all the candidates in the organisation, then the unfairness will be perpetuated as the designated groups will again fall foul due to a lack of skills, training, qualification or experience.

For this purpose the EEA defines suitably qualified people for the purpose of affirmative action in section 20(3). It should be noted that Section 15 of Chapter 3 specifically states that affirmative action measures are measures designed to ensure that suitably qualified people have equal employment opportunities and are equitably represented in all categories and levels of the workforce. There is therefore no requirement on a designated employer to apply affirmative action measures to people who are not suitably qualified. Although, it is the prerogative of the employer to make provision for people who are not suitably qualified, by way of training, development, mentorship, counselling, etc.

According to the EEA, a person may be suitably qualified for a job as a result of any one of, or a combination of:

that person’s formal qualifications;

  • prior learning;
  • relevant experience; or
  • the capacity to acquire within a reasonable time the ability to do the job.

During the recruitment process of an AA candidate, the employer must take all or some of the above factors into consideration when deciding whether a person is suitably qualified and may not unfairly discriminate against the person solely on the grounds of that candidate’s lack of experience. A lack of experience will therefore be unfair unless the employer can make out a good case as to why experience would be necessary for a specific position (core function or inherent requirement).

Does the managerial prerogative still apply?

An employer’s managerial prerogative (or the right to decide and to manage) in this instance relates to the ability and choice a manager or an employer can make to appoint an employee of his or its choice. The term “prerogative” denotes that the person holding the prerogative, has a right that others – the employee or job applicant - does not have. This right is weighed up against the question as to whether a job applicant has a right to be appointed in a position and can he or she therefore challenge the managerial prerogative of the employer or manager and demand to be appointed? Therefore, to what extent, if any, has the decision making power of the employer being curtailed by the labour rights and claim to fairness by employees? (See also The concept of the managerial prerogative in the South African Law by John Kinamugire, 2009, http://www.thembosdev.com/managerial_prerogative_in_sa_labour_law.pdf)

The right to appoint belongs to the employer. However, this right is not absolute. The employer must comply with the principles of fairness and can also not contravene legislation, for example the EEA or the Basic Conditions of employment Act. As has been discussed above, this right is also limited by the right of the job applicant not to be unfairly discriminated against.

In practice, the employer, subject to legal obligations and fairness, retains the prerogative whom to appoint. Affirmative action is not a right that employees have. The court stressed that affirmative action is collective in nature. AA is not a right but rather a means to achieve equality in the workplace. The employee can therefore not sue the employer for not appointing him or her as an AA candidate. The employer can use AA as a shield to explain why preference is given to a designated employee over a non-designated employee.

In exercising its managerial prerogative to recruit and appoint an employer has not only to take its own internal values, such as efficiency, economic realities and employee loyalty, into account, but, because it is part of the large society and because of economic reasons, concern about being socially responsive and probably simply being a good corporate citizen, it may validly looked at external values such as affirmative action. At the workplace, the employer has a prerogative to vary the manner in which employment is done, the prerogative must however be applied fairly and within the law.

In the context of an unfair labour practice (section 186(2) of the Labour Relations Act), the employee does not have a remedy against unfair conduct on the part of the employer in respect of appointments or filling a vacant posts, as it is not in the list of unfair labour practices. That means that if the dispute is about an appointment (or, in most cases, a non-appointment), the CCMA does not have jurisdiction. The difference arises from the fact that two candidates may have a different relationship with the decision-maker. The one is an employee of the decision-maker who claims an unfair act relating to the appointment process whereas the other has no existing employment relationship with the decision-maker and wants to be appointed in a particular position.

If the applicant cannot establish a fact, for example, a promotion, to allow the case to fall within the ambit of an unfair labour practice, then the issue will be about the failure to appoint, which cannot be regulated by the CCMA or the Labour Court. This dispute is in essence one of “interest” and not one of “right.” The employee or applicant has an interest to be appointed, but no right which can be judicially enforced by way of action in the CCMA or the Labour court.

The employer’s managerial prerogative to appoint the most suitable candidate still maintains, however, within the framework of fairness and legal principles as set out in labour law and legislation.

Johanette Rheeder
Johanette Rheeder Inc
www.jrattorneys.co.za