A systematic approach to recruitment reduces risk
The LRA became law on 11 November 1996 bringing with it the prohibition of UNFAIR discrimination. This was followed in 1998 by the Employment Equity Act (EEA), the purpose of which was to:
(a) Promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
(b) Implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups.
What is discrimination?
The EEA inexplicably does not include a definition of discrimination.
In reference to ILO Convention No.111, the term discrimination includes:
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
As set out in Section 6 (1) the EEA:
|No person may unfairly discriminate, directly or indirectly against an employee in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience belief, political opinion, culture language, birth or any other arbitrary ground.|
There are a couple of points in this definition which need to be understood.
- There is nothing to prevent an employer from FAIRLY discriminating – after all, that is what the selection process is all about.
- Direct discrimination is self-explanatory – you may not unfairly reject a candidate for selection or promotion on any of the prohibited grounds listed.
- Indirect discrimination is more subtle – in the case of seemingly fair (but actually unfair) selection criteria which excludes certain individuals or groups.
So how do you discriminate fairly?
In line with ILO Convention 111, the EEA outlines that it is fair to discriminate based on inherent job requirements.
First of all you have to set fair selection criteria. This is best done by drafting a job profile which sets out the Key Performance Areas (KPAs) and Key Performance Indicators (KPIs) of the job. The job profile should also determine what Competencies are required to successfully complete the job.
While job profiles are important in the selection process, they are also critical in determining the value or grade of the job (job evaluation) for remuneration purposes and in the performance management of employees doing the job.
By now everyone knows that one has to be careful how one words job advertisements – there must be no hint of unfair discrimination and they have to be placed in media which does not have the indirect effect of discriminating unfairly against individuals or groups as defined.
If there is an HR Department, they will normally be responsible for screening applicants. It is advisable to have a standard Application for Employment form which all applicants are required to complete. Why do this when the applicant has already sent in a comprehensive CV?
First off all CVs are typed (sometimes not by the applicant). By the applicant completing an Application for Employment form, you can check his/her writing, neatness, etc. The Application form should require the employee to list his/her dates of employment with past employers in chronological order. This makes it easier to see if there are ‘gaps’ in the candidate’s employment history.
It goes without saying that the person responsible for screening needs appropriate training. The interviewer needs to be able to put the candidate at ease and draw out sufficient information from the candidate to be able to make an informed and impartial decision as to whether to invite him or her for further interviews or testing.
If the employer uses a Recruitment Agency, the employer has to be very careful to screen that agency to ensure that they are compliant with the EEA. There was a recent case in Durban where an agency had forward a candidate’s CV to a client with a comment to the effect that the candidate was lesbian. This somehow was leaked on local social media and became a prominent news story!
Medical and Psychological testing
The EEA prohibits medical testing to determine an individual’s HIV status, unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of the EEA.
Medical testing must be justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.
Depending on the industry, some employers require all new employees to undergo a medical examination to determine that they are fit for the job. This is to avoid placing an employee at risk, where he/she might have an existing medical condition that might not be conducive to the inherent job requirements and/or work environment.
Psychological testing, including psychometric testing will only be permitted if it can be proven to be scientifically valid and reliable, can be applied fairly to all employees and is not biased against any employee or group.
Most employers require candidates to be interviewed by a panel before the final selection is made. Here again, these panel interviews can be very daunting and candidates who could be perfect for the job may be rejected because they are nervous.
It is important therefore to make sure that panel members fully understand the interviewing process. It is advisable to use pre-drafted interview guides, to ensure the same questions are asked to all candidates applying for a specific position. Poorly framed questions can end up in claims of unfair discrimination!
Each organisation is different and while a candidate might be fantastic in one organisation, they could equally be a poor fit in another. While it is important to interview to determine the competencies and technical skills of a candidate, it is also very important to establish whether the applicant will fit into the culture of the organisation.
This is best done by asking set questions in the interview covering past employment history, educational qualifications, practical experience, technical skills and team work.
By asking similar questions when doing reference checks with previous employers, it will also provide further clarity in selecting the right candidate for your organisation.
Under Section 11 of the EEA whenever unfair discrimination is alleged, the employer has the onus to prove, on a balance of probabilities, that such discrimination:
- did either not take place as alleged, or
- is rational and not unfair, or is otherwise justifiable.
In relation to the recruitment and selection process, it means that records must be kept showing that a fair procedure was followed and the selection decision was both fair and justified.
The use of a Rating Matrix is the best way to ensure that the best person for the job is appointed. This matrix should have a weighting on competencies and job requirements for an ‘ideal’ candidate. Shortlisted candidates can be objectively rated against this ideal weighting which should stand the test of the CCMA!
Leave candidates with a good impression
When making a final selection, remember, somebody is going to be disappointed. It is important therefore to ensure that the selection process is not only fair but is SEEN to be fair.
Unsuccessful candidates for one job could well be ideal for another job in the organisation. It is therefore important to keep candidates informed at each stage of the process and to ‘let them down easily’. Do not however make promises you cannot keep such as “We will contact you when next there is a vacancy” – and not doing so!
To ensure a consistent approach and to avoid any claims of discrimination, a standardised letter of regret should be used when informing candidates that they were unsuccessful.
Lastly, training for managers and supervisors in the selection process and in interviewing techniques is a must. Failure to do this is likely to have expensive consequences! Let us assist you! Call any of our offices, to arrange a meeting to discuss what we can offer in terms of training your team in Selecting for Excellence!
Bruniquel & Associates (Pty) Ltd.