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19 September, 2014 | Carolyn Ranson
There have been a number of cases reported in the media recently highlighting the problems that can arise if proper due diligence has not been carried out. In one case, the employee had not disclosed their correct qualifications and work history. In another, they had not disclosed previous convictions.
Below are a few tools to use as a pre-employment screening process to reduce the risk of employing a fraudster or someone who is not what they appear.
Under the privacy act, an employer may only collect information relating to an prospective employee for lawful purposes connected with the function or activity of the employer’s organisation. The information must be necessary for the purpose for which it is collected. An example, might be where the role provides a real opportunity for fraud such as someone in sole charge of your accounts.
In such circumstances, a request can successfully be made, under the Official Information Act 1982, to the Ministry of Justice for a prospective employee’s criminal conviction. The purpose here would be to determine if the employee has any dishonesty convictions or other convictions which may be relevant to the job they are applying for.
It is prudent to have an application form or a pre-employment questionnaire which includes a question about whether the candidate is the subject of, or awaiting the hearing of any criminal charges, as these will not show up in the Ministry of Justice records check. However, the employer must clearly state in the form, that a police check may be carried out and that the information collected will be relied upon in making any offer of employment to the candidate. Any information which is incorrect may be grounds for dismissal if it is found to be untrue or misleading. It must also adhere to the privacy principles in terms of the information that must be communicated when private information is collected such as, how long the information will be kept and how it will be stored.
It is important to know that under the Criminal Records (Clean Slate) Act 2004, individuals who have minor convictions for crimes committed seven or more years ago, and that did not attract a custodial sentence and have not reoffended, are deemed to have no criminal record for the purpose of any questions asked of them in the pre-employment situation. This would mean that if a prospective employee is an eligible individual under the Clean Slate legislation, then it would be lawful for them to declare that they have no criminal record on an application form.
Reference checking is a very important part of the pre-employment process. If an employee is dishonest then it would be reasonable to expect that they would have a history of dishonesty in the work place. As such, previous employers are in the best position to inform a prospective employer about any issues in this regard.
It is important to note however that, under the privacy act, the prior consent of the prospective employee is required. However, if referees are listed on a CV or an application form then it would be generally accepted that consent has been given to contact those referees. It may raise questions if a previous employer has not been listed on a CV, if that is the case.
Where qualifications are required, we would also advise checking with the relevant institution that qualifications have been obtained, as set out on the CV.
Another useful tool in the recruitment process is a credit history check. There are a number of companies which provide this sort of information to employers for their pre-employment checking. We understand that Baycorp Advantage Limited offer this service but there will be other companies offering this sort of vetting as well. Again the privacy principles must be adhered to.
The legality of this approach is largely untested in New Zealand and under the Privacy Act the collection of personal material must not be “unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned”. However, our view is it could be argued that if a person has posted personal information about themselves on Facebook, and has not set any privacy settings, it would be in the public domain.
Google is another useful tool for discovering as much information about the potential employee as possible.
A word of caution however, it is very important not to discriminate against a person on the grounds set out in the Human Rights Act. You might run the risk of discrimination if you find something out about someone that they might not want you to know. An example of this is a person’s sexual orientation.
Having a well drafted, comprehensive employment agreement can assist where an employee is charged or convicted of offences after they have been employed. It can also cover the situation where an employee has failed to disclose criminal convictions during the pre-employment processes or has otherwise falsified their application form, and this comes to light at a later stage.
(Please note we do not offer no win – no fee payment arrangements)
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