The Perils of the “Preferred Candidate”

Navigating the Queensland industrial relations systems, which has seen significant reform in the last few years, has been a steep learning curve for many employers.

Generally, local governments consider the risks associated with managing people within their organisation, whether engaging in a performance management process, a disciplinary process or termination of an employee. Employers are however less likely to consider the potential risks associated with recruitment and the processes in which they follow.

Recently, recruitment processes have come under review, particularly when a prospective employee is offered a position, or advised that they are the preferred or recommended candidate, pending all relevant pre-employment checks.

It is commonplace for employers to now require candidates who have succeeded to interview, to consent to criminal record checks, pre-employment medical examinations, and numeracy and literacy tests, prior to commencing employment. What employers don’t realise is that making an offer of employment or advising a candidate that they are the preferred or recommended candidate, could ultimately put the employer at risk.

In a recent decision from the Australian Human Rights Commission, it was found that an employer discriminated against a candidate when they elected to rescind an offer of employment based on the candidate’s criminal record[1]. The Commission found that the criminal record, which was disclosed to the employer during the recruitment process, was not relevant to the inherent requirements of the job. Therefore, the employer’s reliance upon the criminal record amounted to discrimination.

What does this mean for your Council?

Councils need to review the way in which they recruit positions within their organisations. With the potential claims of discrimination, Councils need to consider the following:

  • What pre-employment checks are required for the position that is being recruited?  For example, is a blue card check required for a Records Officer who will not foreseeably be working with children.
  • Does failing a pre-employment check or returning an unfavourable result during a pre-employment check affect the ability of a candidate to perform the inherent requirements of the position?  It is essential that the inherent requirements of the position are considered before determining if a candidate is not suitable for the role. If a Finance Officer fails to lift 20 kilograms in a medical examination, it is not reasonable to suggest that they will not be capable of performing the inherent requirements of the position. If a candidate for a Mechanic, on the other hand, cannot lift 20 kilograms, it may be reasonable to conclude that they cannot perform the inherent requirements of the position.
  • What terminology is used when advising candidates that they have progressed in the recruitment process to the pre-employment checks?

It is essential that Councils also consider who is on a recruitment panel and whether they have received appropriate training.

It is clear that Councils must be mindful throughout each recruitment process of the risks of discrimination and assess each matter on a case by case basis. If you would like further advice regarding your recruitment processes or recruitment training, please contact Preston Law on 4052 0700.

 

[1] Smith v Redflex Traffic Systems Pty Ltd (2018)

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