The dos and don’ts of pre employment screening

Employers often want to know what they can and can’t ask in job applications and interviews.

If you ask the wrong questions, there is a risk of inadvertently discriminating against a candidate under the Human Rights Act 1993 (“Act”) and exposing your business to significant liability. On the other hand, a lack of thorough pre employment screening can result in difficulties with staff performance.

There is also a risk of breaching the Privacy Act 1993 by not carefully considering what you are asking and how you use and disclose any personal information once it is provided.

Here is a quick guide to topics that should not be covered in pre employment screening:


Don’ts

Exception to the Rule

Age or date of birth (the Act protects age discrimination from 16 years of age and above)

 

  • Where being a particular age, or a particular age group, is a genuine occupational qualification for the role
  • If, for reasons of authenticity, being of a certain age is a genuine occupational qualification for the role
  • If the duties of the position are wholly or substantially to be performed outside of NZ and because of the laws, customs or practice in that country, the role is ordinarily carried out only by a person who is of a particular age/age group
  • If the applicant is under 20 years of age and the role involves NZ national security
  • The role is in domestic employment in a private household

Family status (including, whether the applicant does or does not have children in their care, relationship status or who the applicant is related to)

 

  • An employer can ask about childcare if the role involves extensive travel away from home
  • An employer can ask about relationship status if the applicant is in a relationship with another employee and:
    • There would be a reporting relationship; or
    • There is a risk of collusion between the parties to the detriment of the employer

Employment status (including whether the applicant is receiving ACC or social security benefits or has previously been unemployed)

 

  • N/A

Disability (this includes physical disability or impairment, physical illness, psychiatric illness, intellectual or psychological disability or impairment, any other loss or abnormality of psychological, physiological, or anatomical structure or function, reliance on a guide dog, wheelchair, or other remedial means, the presence in the body of organisms capable of causing illness

 

  • Good physical mobility is essential to the nature of the job
  • The role is such that the applicant could only perform the role with the aid of special services/ facilities and it is not reasonable for the employer to provide those services/facilities
  • The role is such that the applicant could only perform the role with risk of harm to the applicant or others and it is unreasonable to take that risk
  • The role involves the national security of NZ
  • The role is one of domestic employment in a private household

Political opinion

 

  • The role involves the national security of NZ
  • The role is one of domestic employment in a private household
  • The role is one of a political advisor to certain people or to a political party

Ethnic or national origin

 

  • The role is that of a counsellor dealing with highly personal matters such as sexual matters or the prevention of violence

Gender

 

  • If, for reasons of authenticity, being of a certain sex is a genuine occupational qualification for the role
  • If the duties of the position are wholly or substantially to be performed outside of NZ and because of the laws, customs or practice in that country the role is ordinarily carried out only by a person who is of a particular gender
  • There the role is one of domestic employment in a private household
  • Due to reasonable standards of privacy in the role, the role must be held by a certain gender
  • Due to the nature or location of the role, the person in the role must live in accommodation provided by the employer and:
    • The only premises available is not equipped for separate sleeping accommodation for each gender; and
    • It is unreasonable for the employer to equip the premises for separate accommodation or to provide a separate premises for each gender

Sexual orientation

 

  • Where the role is one of domestic employment in a private household
  • Where the role is that of a counsellor on highly personal matters such as sexual matters or the prevention of violence

Religious or ethical belief

 

  • If the duties of the position are wholly or substantially to be performed outside of NZ and because of the laws, customs or practice in that country the role is ordinarily carried out only by a person who is of a religious belief

Pregnancy and childbirth (including proposed pregnancy)

 

  • N/A

 

Here is a quick guide for topics that should be covered in pre employment screening if the question is relevant to the role:


Dos

Exception to the Rule

Credit check

 

  • If there is not a legitimate reason for doing so (legitimate reasons can include that the role involves dealing with money or account)
  • If the applicant does not give consent to undertake the credit check

Criminal records

 

  • The applicant does not have to disclose previous convictions under the Criminal Records (Clean Slate) Act if:
  • The applicant has no previous convictions in the last 7 years and;
  • Never received a custodial sentence

Drug testing

 

  • If drug testing is not a legitimate requirement of a safety sensitive role or environment

Entitlement to work in New Zealand

 

  • N/A

English language competency

 

  • If this is not a requirement of the role

Whether there is any factor that would prevent an applicant from carrying out the role

 

  • N/A

 

Workplace Law Team

If you have any queries in respect of the above, or any other workplace law issues, please contact a member of Lane Neave’s Workplace Law Team:

Employment: Andrew Shaw, Fiona McMillan, Kathryn McKinney, Siobhan Rastrick, Hannah Martin; Holly Struckman; Anna Needham
Immigration: Mark Williams, Rachael Mason, Nicky Robertson, Hetish Lochan, Daniel Kruger, Julia Strickett, Rita Worner, Lavinia Shanks, Winnie Chen, Caroline Edwards, Ken Huang, Sally Stone, Mary Zhou, Sarah Kirkwwood, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

Contact

Andrew Shaw
Partner, Lane Neave

t +64 3 353 8014
m +64 29 244 9001
e andrew.shaw@laneneave.co.nz

Fiona McMillan
Partner, Lane Neave

t +64 9 300 6264
m +64 27 351 2000
e fiona.mcmillan@laneneave.co.nz

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