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Recruitment 101: Are you legally allowed to conduct reference checks?

by , 04 February 2014
Conducting reference checks is an important part of the recruitment process. But, is this practice even legal? Read on to find out what labour law says about conducting reference checks.

The Labour Law for Managers Loose Leaf Service says 'while it's crucial for you to use effective reference checking processes before appointing anyone to your organisation, it's becoming more difficult to make such reference checks because of the legal protections against discrimination and invasion of privacy.'

This brings us to the question: 'Are reference checks legal?' Read on to find out...

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Here's what labour law says about the legality of reference checks

To answer this question, you have to examine which criteria the law prescribes for selecting suitable applicants. After this, you can assess where, if at all, reference checks fit in.

When you assess the suitability of a job applicant, the law requires you to use one or all of the following four criteria:

  1. Formal qualifications
  2. Prior learning
  3. Relevant experience
  4. Capacity to acquire, within a reasonable time, the ability to do the job.

The Employment Equity Act (EEA) fails to define these four crucial criteria.

That said, the Loose Leaf Service says doing reference checks is legally acceptable, even though it's not specifically mentioned in the EEA as a criteria to assess the suitability of an applicant.

This is because reference checking is often necessary if you want to check an applicant's prior learning or capacity to learn to do the job.

Labour law also doesn't provide a list of questions you may ask when doing reference checks. But you can check an applicant's trustworthiness, loyalty, skills, conscientiousness and other factors that relate to the inherent requirements of the job.

Just make sure you don't ask questions that relate to the following.

The same applies when you're the referee answering questions from a prospective employer.

'You're never obliged to give a reference other than to confirm the position and period of employment of your ex-employee,' says the Loose Leaf Service.

Now that you know what the law says about conducting reference checks, make sure you comply.

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