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 includes having open and earnest conversations between employees and management, and clear communication when a boundary has been crossed.
However, is this still the case when you are simply applying for a job and are not officially considered an employee?
Law firm Abrahams & Gross broke down exactly what you do and don’t have to disclose when in a job interview in South Africa.
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 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?
According to Abrahams & Gross, 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 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.
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 offences 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.