By Sophie Maes of Claeys & Engels (the Belgium member of Ius Laboris)
The European Court of Justice (ECJ) has considered a significant issue that may arise where a job applicant is rejected by the prospective employer and brings a discrimination claim. What is the effect of the employer refusing to provide information about whether another candidate was appointed at the end of the recruitment process?
While the ECJ ruled that an employer in this situation does not have a positive obligation to disclose the relevant information, the judgment nonetheless suggests that a refusal to do so could be dangerous for employers in some circumstances.
The case concerned a job applicant who on two separate occasions was not invited to an interview for a similar position at the same company. She brought an action alleging race, sex and age discrimination, requesting that the company produce the file for the person who was ultimately hired. The company refused and the court referred the case to the ECJ, which clarified the legal position as follows:
- A job candidate whose application was rejected and who claims plausibly that he or she meets the requirements listed in the advertisement for the position is not entitled to information indicating whether the employer hired another applicant at the end of the recruitment process.
- However, the employer's refusal to grant any access to information is one factor the court may take into account in deciding whether facts have been established from which discrimination could be inferred.
Employers continue to wrestle with the issue of whether to require employees and prospective employees to divulge their social media passwords. In the United States, a recent spike in interest by the media, advocacy groups, legislators and the general public has refocused attention on the issue. Although it may not be unlawful to seek the information, in most situations, it is inadvisable.
The efforts of law enforcement agencies to obtain social media log-in information to supplement background checks on prospective recruits have received the most notoriety. However, some private entities have engaged in the practice as well. For example, in New York a statistician withdrew his application when an interviewer at the company to which he had applied asked for his social media password.Continue Reading...
The UK Government has announced wide-ranging plans for what it claims to be "the most radical reform to the employment law system for decades". The proposals were set out by the Secretary of State for Business, Dr Vince Cable, in a speech to the EEF manufacturers' organization. Some of the measures had been previously floated but others were novel, including:
- amending the UK's whistleblowing legislation so that complaints by employees about a breach of their own employment contract will no longer constitute a protected disclosure;
- seeking views on introducing compensated no-fault dismissals for "micro employers" with fewer than ten employees;
- simplifying and "slimming down" the processes required to carry out a fair dismissal, including potentially working with the conciliation service Acas to change their Code of Practice on Disciplinary and Grievance Procedures;
- consolidating the myriad regulations relating to the national minimum wage; and
- streamlining the current regulatory regime for the recruitment sector.
2010 was a rollercoaster year for immigration law in the United Kingdom. This article provides a recap of key developments, with an eye to the future.
Following the general election in May 2010, Home Secretary Theresa May announced the introduction of a limit on migration into the UK by non-European Economic Area (EEA) nationals. This was in keeping with a Conservative Party manifesto commitment, subsequently incorporated into the Coalition Government's programme for government (PDF).
An interim limit was swiftly implemented by the UK Border Agency (UKBA) on 19 July 2010. This continues to operate today, ahead of the permanent limit on non-EEA economic migration which is likely to be implemented on 1 April 2011.Continue Reading...
The UK's Coalition Government has, rather surprisingly, announced that it intends to implement a provision in the Equality Act 2010 allowing employers to take positive action in favour of protected groups when recruiting and promoting.
This provision (section 159 of the Act) was included in the legislation by the previous Labour Government and the Coalition had signalled that it was unlikely to bring it into force. But whilst the measure has previously been the subject of somewhat sensationalist reporting by some sections of the British media, there is no cause for employers to be unduly alarmed. It will not mean that "women will get priority" or that any groups in particular will be preferred over others for jobs or promotions.Continue Reading...
In the last year, Canadian courts have tackled a wide range of legal issues that are relevant to employers. To keep employers up to date on developments in the law, Heenan Blaikie's national labour and employment law practice has prepared a paper entitled "Recent Developments in Workplace Law" (pdf) which provides an overview of recent developments in employment, human rights, pensions, labour, workplace privacy, and occupational health and safety law.
The Ontario Human Rights Code prohibits discrimination on the basis of a record of offences. However, the Code only protects individuals who have been convicted of a provincial offence or a pardoned criminal offence. Those who have been charged but not convicted for whatever reason, or who have not received a pardon, receive no protection under the Code. This differential treatment of offences can create uncertainty for employers attempting to respect a record of offences as a prohibited ground of discrimination. Two recent decisions from the Human Rights Tribunal help to provide clarity.
In Dubé v. CTS Canadian Career College (pdf), an employer revoked a job offer after it learned that the Applicant had been convicted and later pardoned of armed robbery and manslaughter. The Tribunal held that the Applicant was under no obligation to disclose his criminal history in the interview process because a pardon had been granted. Consequently, the decision not to hire the Applicant because of his conviction or his failure to disclose his criminal history was discriminatory. This decision contrasts with de Pelham v. Mytrak Health Systems (pdf). In this case, the Applicant was terminated from two jobs when his employers learned of pending criminal charges against him. The Tribunal dismissed the Applicant's complaint. The Tribunal held it had no jurisdiction to hear a complaint based on a record of offences that did not concern a provincial offence or a pardoned criminal offence.Continue Reading...
The UK's new Equality Act, which came into force on 1 October 2010, severely limits the scope for employers to ask about the health of job applicants before offering work. What will this mean in practice?
Until now, many employers' normal recruitment practices have involved a pre-employment health questionnaire to flush out any previous or existing medical conditions the prospective employee may have.Continue Reading...
According to Russian employment legislation, unjustified refusal may lead to criminal liability for the employer. The press centre of Investigation Committee of the Prosecution Office (SKP) of the Russian Federation informed, two criminal cases had been initiated in connection with unjustified refusal to hire pregnant women.
The Limited Liability Company "Nata" refused to hire candidates who applied for the vacant position of manager upon recommendation of the State Employment Centre. The motive for refusal was pregnancy of candidates. The cases were initiated in the Vologodskiy region in connection with material elements of offence stipulated by article 145 of the Criminal Code of the Russian Federation (unjustified refusal to hire).
Formal prosecution for such grounds is quite rare, so the cases are in the highlight of Russian media.
As Germany Considers Restrictions on Use of Social Media for Recruiting, Multi-National Employers Need to Start Thinking About Social Media Policy 2.0
A bill approved on August 25, 2010, by Germany's cabinet for introduction to the German Parliament would restrict employers' use of social media in the recruitment process. Many multi-national employers are still struggling to implement a policy governing the use of social media in their U.S. workplace. Before multi-national employers even complete that task, or catch their breath from doing so, they need to confront the question, as the German proposal suggests, whether the version 1.0 social media policy addressing only U.S. employees can be lawfully applied to non-U.S. employees. To learn more about the bill and its implications for employers, please continue reading at Littler's Workplace Privacy Counsel blog.