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Mistakes in recruitment: Is reference checking legal?

by , 04 June 2015
When recruiting new people for your company, there are some processes you may apply without knowing you could make a mistake and could later result in discrimination! Keep in mind that the new Employment Equity Act amendments have far-reaching effects on your business.

You can't discriminate against a potential employee and don't forget that if you do, you could land up at the CCMA paying someone who wasn╩╝t even your employee 24 month's salary!

Today we'll see if reference checking is legal!

While we know it's essential for you to use effective reference checking processes before hiring anyone, that doesn't mean you're allowed to ignore the rules and pretend there are no legal protections against discrimination and invasion of privacy.

Here's a useful tip for you: Ask the applicant to sign a consent form agreeing to the type of reference check you'll be doing. This way you have his permission to ask what you need to.

Here are the four criteria to use when choosing who to hire.

The law says you have to use one or all of the following four criteria when seeing if an applicant is suitable:

1. Formal qualifications;
2. Prior learning;
3. Relevant experience; and
4. Capacity to acquire, within a reasonable time, the ability to do the job (Subsection 20(3) of the EEA).

Let's look at each of these in more detail…

1. Formal qualifications

This refers to the job applicant's school finishing certificate; a university degree; Technikon or college diploma, certificate or degree; or similar academic achievement.

It's logical to base an applicant's suitability as a Financial Manager partially on his accounting degree or diploma.

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2. Prior learning

'Prior learning' includes the following:

• Informal qualifications from short courses;
• Exposure to the tasks of the job;
• Having done or assisted with a similar job;
• Reading on the topic;
• Attendance at relevant conferences;
• Partly finished degrees, diplomas or internships;
• On-the-job training;
• Participation in relevant mentoring programmes;
• Any other form of relevant learning other than formal qualifications.

For you to check what prior learning an applicant has, look at any certificates he gives you, do reference checks and have the candidate carry out a skills test.

3. Relevant experience

This is the extent to which the applicant's carried out the same or similar work. It's traditionally been a key requirement when screening job applicants. The law allows you to use these criteria. But, you can't unfairly discriminate against an applicant just because he doesn't have relevant experience. This means if two applicants are similar in terms of the first three criteria in point number two, then you mustn't disqualify either of them solely because they lack experience.

Mandla and Paul both apply for the job of General Manager. The job says they must have 10 years' experience. Both have MBA degrees, have been in mentoring programmes and show equal capacity to learn the job. Paul, the white applicant, has 10 years' experience in financial, sales and production management, but Mandla has only four years' experience in sales and production management. If you turn Mandla down, it mustn't be solely because of his lack of experience. If you find that Mandla falls short of the mark, you may need to highlight an area of prior learning where he's lacking.

4. The capacity to acquire, within a reasonable time, the ability to do the job

The question is: How does one measure capacity or potential to learn?

Three steps to measure capacity:
1. Analyse the job facets and the qualities the applicants need to do the job.
2. Devise fair and objective tests to assess the presence of necessary qualities.
3. Apply these tests consistently across all applicants.

Now, let's go back to checking credit references. Is it legal or not?

First of all, keep in mind that there's no law prohibiting you from checking the credit references of job applicants, but don't do it unnecessarily. The Constitution of South Africa protects the right to privacy of all people in South Africa.

Note that the onus is on you to prove to a court that credit checking was essential due to the operational requirements of the job.

And if you find yourself in such a situation, then the solution will be difficult since a certain reference doesn't necessarily imply that the person is bad for the job. For example, when you're recruiting for a bank cashier, a bad credit reference doesn't mean he's likely to steal the bank's money.

The Court could see this as discriminatory and an invasion of privacy if you turn down an applicant after a credit check.

So keep this in mind and avoid all non-essential checks of this nature!

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