Law blog: Asking new staff right questions can save headaches

With a new year we may see a few fresh faces at work. But before you invite that new employee to join your team, consider asking a few more questions.

And don't forget about the paperwork before they begin too. You might just avoid making costly mistakes, writes employment lawyer Lucia Vincent.

Asking the right questions...

Whether it's a 5 minute chat with a prospective employee or a full-on recruitment drive, as an employer you are likely to only hear the answers the applicant thinks you want to hear. Asking the right questions forms a vital starting point when engaging quality staff.

Asking a comprehensive list of questions designed to find out information relevant to the role reduces the risk of employing someone without knowing crucial information that could influence whether you employ them. Gathering information about the applicant's skills, experience and qualifications is always important. But don't stop there.

Also ask about whether someone is legally entitled to work in New Zealand and for verification of this.1 Ask if an applicant has any criminal convictions or charges pending.2 And what about any medical conditions that could inhibit their ability to do the job?

... without discriminating...

But don't get too carried away. Whether during an interview or in a written application form, asking about religious or political beliefs, marital status, or childcare responsibilities is likely to breach the Human Rights Act 1993 that makes it unlawful for an employer to refuse to employ someone solely on the basis of a prohibited ground of discrimination.3

An employer cannot lawfully advertise or ask questions that indicate that they may intend to discriminate.4 The general rule of thumb is to ask only for information that helps you to assess an applicant's suitability for the position, as far as it is relevant to the nature and type of work undertaken. The Employment Court clarified that asking about "... any medical problems of any kind" in an application form for a Counter Sales position went too far.5

Although an employer "must be able to ascertain whether the applicant has any medical problems or disabilities which might impact on their ability to do the job to a satisfactory standard" (47), the question posed would enable "an employer potentially to reject an applicant on the basis that she suffers from a disability or medical condition even if it would have minimal or no impact on her job" (55).

... before you make an offer

But you must ask the right questions before you offer someone the job if you are to avoid being stuck with someone. If you employ someone and find out something you don't like later, it's usually too late. Any attempt to dismiss someone for failing to tell you something you didn't ask about is likely to be unjustified.

For example, in response to a question about convictions, an applicant could honestly say they have none, despite being recently charged with an offence. The duty of good faith that would normally require an employee to be proactive about disclosing relevant information, just doesn't apply before the employment relationship begins.

Lying to get the job

An applicant's misrepresentation at a job interview (also known as lying to get the job), could be grounds for ending employment. Usually only if you have relied on what they have said in deciding to employ them. But if an applicant failed to disclose information you didn't ask for, it's much more difficult.

In an Employment Court case a couple who applied for positions with the IRD as customer services officers, and who truthfully stated that they had no convictions, had failed to say they'd been charged under the Crimes Act 1961 and the Social Security Act 1964 for benefit fraud.6 The IRD discovered this when the couple asked for time off to appear in Court where they intended to plead guilty. They were later dismissed for serious misconduct.

Strictly speaking the couple had done nothing wrong in failing to talk about the charges because they had given "honest and proper answers to all questions put to them during their rigorous selection and initiation processes" (5). Regrettably the IRD just didn't ask the right questions, employed the couple, and couldn't claim any misconduct had occurred during the relationship or that they had relied on a misrepresentation in employing them (39). Ultimately the Court's "exceptional jurisdiction" to decide cases with equity and good conscience resulted in the couple's personal grievances being dismissed (53).

Prioritising paperwork

All employees must have written employment agreements.7 So before that fresh face begins, make sure they've signed one. Facing financial penalties (up to $20,000) for failing to comply with this key obligation may motivate employers to prioritise paperwork.8 As will any hope of relying on a trial period. 9 Even signing a written agreement only hours after beginning work (or months after accepting a position), can result in a trial period being ineffective.10

An employer should provide a copy of a written agreement well before expecting an employee to sign it too. This is because an employer must tell an employee that they are entitled to a reasonable opportunity to seek independent advice on the agreement they have offered, and that they will consider and respond to any issues raised by the employee in good faith. 11

Just too hard?

Is it just too hard to ask the right questions, get a written record of the answers, arrange employment agreements early and get staff to sign before they start? If you want to avoid problem staff and paperwork hassles later in the year - it's just too hard, and possibly costly for your business, if you don't.

---

References: 1/ Visit the VisaView tool provided by Immigration New Zealand to employers wanting to check whether an applicant who is not a New Zealand citizen can work for them: http://www.immigration.govt.nz/employers/resources/visaview/default.htm. 2/ Please note that it is an offence for an employer to ask an applicant to disregard the provisions of the Criminal Records (Clean Slate) Act 2004 that allows an applicant to say they have no convictions if they meet the criteria under that Act. 3/ Section 22, Human Rights Act 1993 4/ Section 23, 67 Human Rights Act 1993 5/ Imperial Enterprises Ltd v Attwood [2002] 2 ERNZ 740 (EMC) 6/ Murray v Attorney-General [2002] 1 ERNZ 184 (EMC) 7/ Section 65(1)(a) Employment Relations Act 2000 8/ Section 65(4) Employment Relations Act 2000 9/ Section 67A Employment Relations Act 2000 10/ Blackmore v Honick Properties Ltd [2011] NZEmpC 152 11/ Section 63A(2) Employment Relations Act 2000

---

Lucia Vincent is a Senior Solicitor based in the Dunedin office of Janet Copeland Law, Employment Lawyers. For advice on any aspect of the employment relationship, you can contact Lucia at Lucia.Vincent@JCLaw.co.nz or on 03 474 5826 or 021 223 4694.

We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.