It goes without saying that employers need to be able to trust their employees. Trust is the cornerstone of any relationship, and an employment relationship is no exception. Employees and employers have very specific rights in terms of common law, as well as labour legislation, and balancing these rights is crucial to a fair and successful employment relationship.

This begs the question: what information, by law, is the job applicant required to provide a prospective employer and what information is the employer entitled to request at interview stage?

What are the employer’s rights to information?

The employer has a right to full and accurate information pertinent to making the decision to employ an applicant. This right, like all rights, is not absolute and is subject to exceptions, such as when the information relates to personal circumstances. Section 6 of the Employment Equity Act 55 of 1998 (EEA) prohibits discrimination against job applicants on numerous arbitrary grounds, which includes race, gender, pregnancy and age.

What information is an employer not entitled to?

Thus, before we look at what information a potential employer is entitled to, let us first briefly look at what information such potential employer is not entitled to. Any information relating to the prohibited arbitrary criteria encompassed in section 6 of the EEA may be withheld.

In practical terms, this means that a potential employer may not ask a job applicant questions pertaining to his or her HIV status (unless this question is medically relevant), marital status, sexual preference or religious practices. Furthermore, a woman does not have to divulge whether or not she is pregnant. Questions about disability are also considered to be unfair if such questions are discriminatory; however it is reasonable to enquire as to how a work environment can be adapted to make a disabled employee more comfortable.

What information must an employee disclose?

A prospective employer may enquire about prior conduct or past transgressions where the nature or the seniority of the post requires him or her to do so. As such, an applicant has a duty to disclose all material information relating to past transgressions which could potentially impact the employment relationship or disqualify him or her from the new appointment.

For example, a failure to disclose an employee’s alcoholism has been considered to be a breach of contract in the past and can lead to dismissal. Dismissal is furthermore fair where an employee fails to disclose during an interview that he was dismissed due to gross negligence during the performance of his or her duties. However, it would seem that it is not necessary to disclose a conviction for contravening various provisions of the Insolvency Act 24 of 1936.

Criminal records and credit checks

A prospective employer may enquire as to any criminal records; however job applicants are advised to tread carefully in this regard. It would be unfair to consider past criminal records for minor offenses which have no bearing on the requirements associated with the position. Regarding credit checks, a potential employer may not run such check without the consent of the job applicant. In addition, a credit check may only be requested by a potential employee if the candidate is being considered for a position which requires honesty while dealing with cash or finances.

Employers and recruiters should therefore be mindful when determining the selection criteria for potential job applicants. Similarly job applicants should be mindful of what information they are obliged to disclose at the interview stage to prevent retrospective action later in the employment term should he or she be the successful applicant.

Article By Jeremy Simon & Wesley Scheepers