In September 2017, the Workplace Relations Commission (the main employment adjudication body in Ireland) criticised a State body for requiring a photograph of job applicants in advance of interviews as potentially discriminatory on a number of grounds. The State body argued that the practice was a pre-screening tool used to prevent personation (someone assuming the identity of another person with the intent to deceive). The Adjudication Officer warned that “surely in this day and age there are ways of preventing personation which are less open to allegations of prejudice.”
Pre-screening is a term used to describe vetting processes used by employers to satisfy certain occupational requirements or pre-contract conditions. In Ireland, certain pre-conditions of employment are quite common for example, satisfactory qualifications and employment references. However, other pre-screening practices such as drug taking and criminal checks (unless working with vulnerable persons) less so. While there is no specific legislation governing pre-screening practices in Ireland, the area is governed generally by equality and data protection legislation, together with the individuals constitutional right to ‘bodily integrity and privacy’. The current position is a balance of rights of the individual and the interests of the employer.
A. Sources of Pre-Screening Governance
1. Data Protection and the Right to Privacy in the context of Pre-screening
An individual’s right to privacy is a personal right enshrined by the Constitution and further protected by the Data Protection Acts 1988 – 2003 (the “Acts”) and employers should be mindful of this during the pre-screening process. The Acts restrict the collection, processing, keeping, use and disclosure of personal data. The area is due an overhaul in May 2018 when the European General Data Protection Regulations (the “GDPR”) come into force. In essence, the GDPR will introduce stricter requirements when processing data and increased financial risks if there is a breach with higher administrative fines and where data subjects can pursue damages for non-pecuniary loss e.g. loss to reputation or stress.
Historically, as part of the vetting process, employers required employees to make a data access request for their criminal records to the Gardaí (Police) and to provide the employer with a copy of the documents. This practice of forced data access request has since been prohibited by section 4(13) of the Acts. Furthermore, prior to collecting any data the employer must have a lawful basis for doing so (which may be in pursuance of a legitimate interest of the employer) and so the relevance of the data to the position will become more prominent when collecting information. The GDPR also provide that a data processor shall not retain data for longer than is necessary (discussed further below).
The GDPR will essentially enhance an individual’s right to privacy. Probably more concerning from an employer’s perspective is the risk of civil suit for non-material damages and/or increased fines where there is a breach of the GDPR. Whereas the current position allows for damages only where there is material loss, the GDPR will allow individuals to sue for non-material loss such as stress or damage to reputation which may lead to increased litigation. Employers also risk higher administrative fines as a result of a breach with fines up to €10M or 2% of turnover, whichever is higher, for serious breaches or up to €20M or 4% of turnover, whichever is higher, for very serious breaches. (Currently the maximum fine is €3,000 on summary conviction and €100,000 on indictment together with an order to erase the data in breach of the Act)
2. Discrimination in the context of Pre-screening
The Employment Equality Acts 1964 – 2015 (the “EEA”) specifically governs the employment relationship and prohibits discrimination on nine grounds: gender, civil status, family status, race, sexual orientation, religion, disability, age and membership of the Traveller community.
Under the EEA, an employer’s duties will apply to employees as well as to candidates and this will include an obligation not to discriminate when advertising the vacancy. In a high-profile age discrimination case involving an advert for Ryanair seeking a “young dynamic professional”. While Ryanair claimed that the advert meant young in spirit, the Equality Tribunal disagreed noting that all applicants were below the age of 40 years indicating that older applicants felt excluded. With that in mind, an employer should avoid collecting information that is not relevant to the job and that may expose them to an equality claim at all stages of the recruitment process. Prior to collecting the data employers should consider why they need the information and whether it is relevant to the job.
Where there is a breach of the EEA, an individual who is not an employee may pursue the company for damages through the Workplace Relations Commission with a potential maximum fine of €13,000. An employee may pursue the employer on foot of a breach with maximum compensation of two years gross remuneration or €40,000, whichever is greater.
In McGinn v Board of Management, St Anthony’s Boys National School, the Adjudication Officer awarded the maximum compensation of two years’ gross remuneration (€117,000) plus €10,000 in compensation for stress caused to the Claimant, along with a number of other orders, in what she described as the worst ever claim of victimisation she has ever encountered. The Claimant applied for the principal position of the school and claimed that during her interview she was questioned about “her suitability to be appointed to the post in light of her gender”. It was also suggested to her that the appointment of a female principal to a boys’ school “would pose a problem from the role model point of view”.
3. Right to Bodily Integrity
An individual’s right to bodily integrity is perhaps unique to Ireland. It is an unenumerated right (not expressly mentioned in the Constitution but has developed through case law) and guarantees a right not to have your person interfered with subject to qualification.
B. Examples of Pre-screening Practices in Ireland
1. Medical history
A prudent employer should only carryout medical examinations after the offer of employment has been made to avoid any allegation of discriminatory decision making. As stated above, the EEA prohibits discrimination on the grounds of disability and where an employer is on notice of an candidates disability and puts an employer on notice of any disabilities/illness and thus expose them to a potential equality claim where the candidate is unsuccessful. If this does occur, an employer should retain a record of their decision-making process to justify/defend a potential challenge.
If it transpires post-medical assessment that the employee does have a disability, an employer must make reasonable accommodations for them to carry out their duties. What amounts to reasonable accommodation varies and the employer is not obliged to provide reasonable accommodation that would put a disproportionate burden on the employer (what amounts to a disproportionate burden would depend on the size/resources of the employer).
An employer is not automatically entitled to medically assess their employees due to their right to bodily integrity and privacy. An employer should obtain the employee’s consent prior to a medical examination. The employer will also need the employee’s consent to obtain a copy of their medical records.
2. Criminal Background Checks
There is no provision in Ireland to conduct criminal background checks unless the employee will be working with children or vulnerable adults. As stated above, the practice of forced data access requests has been expressly prohibited by the Acts.
3. Social Media
Under the GDPR, an employer must have a lawful basis for processing an employee’s data and one such basis could be the legitimate interest of the business. The Data Protection Commissioner has noted that although processing information that is in the public domain does not give rise to data protection concerns per se, nevertheless an individual should be provided with any information from social media profiles and given an opportunity to comment on it.
An employer should ideally only search information in the public domain that is relevant to the position. This should be interpreted narrowly and the employer should first consider why they require the information. The employer should also distinguish between professional and personal social media sites.
While pre-screening is a useful tool to determine whether a candidate would be a good fit there is a risk that collating information could manifest in an equality claim or breach of privacy to data protection.
- Equality claims are lodged with the Workplace Relations Commission under the Employment Equality Acts 1998 (as amended). Where the complaint is made by a person who is not an employee the WRC can award compensation up to €13,000 and/or an order that the company takes a course of action specified. Where the complaint is made by an employee the potential liability is up to 2 years gross remuneration or €40,000, whichever is greater.
- A breach of the incoming GDPR will expose an employer to civil suit with potential compensation awards for both material and non-material damages.
- Increased administrative fines under the incoming GDPR: €10M or 2% of turnover, whichever is higher, for serious breaches or up to €20M or 4% of turnover, whichever is higher, for very serious breaches.
D. Disposing of Information
Only keep information for as long as necessary for example, statutory obligations, HR requirements. Employers should not hoard info and should be aware that the more data they hold the more obligations they have.
What about challenge to a recruitment decision? An employer should strike a balance between the risk of litigation and the individual’s right to privacy. Under the GDPR the burden of proof shifts to the data controller who will have to show what they did was compliant and account as to why they kept the records. The Data Protection Officer has advised that after 12 months there is no need to keep data. If a candidate becomes an employee then it is justifiable and proportionate to retain information for a longer period.
E. How to avoid legal claims
Pre-screening focuses on whether the employee is a good fit for the company. However, it may cause issues for an employer where the scope of their investigation goes beyond what is necessary to determine whether the individual is fit for the job. The risk here is that the employer may discover something about a candidate that is not relevant to the position but yet influences their selection or gives rise to an inference that it did. Essentially, there should be a level playing field for all candidates. The following guidelines will assist an employer when conducting their pre-screening process:
- Draft an objective and accurate job specification
- Appoint a properly constituted interview panel i.e. the panel should be gender balanced and properly trained
- Prepare interview questions in advance that are objective, relevant to the job and comply with legislation. Questions, interview notes and decision should be consistent
- Interview panel should keep individual note of the interview. Do not destroy interview notes!
- Interview scores should tally with the interview notes. Discretionary marks should not account for a high proportion of the overall score.
- Have a transparent recruitment process and document reasons for your decision – let the candidates know what checks you are carrying out and allow them the opportunity to comment
- Consider what information you are collecting and why you are collecting it? Is it relevant to the position?
- Obtain consent in line with the new GDPR or have a lawful basis for collating the information
- Consider outsourcing the pre-screening process
- Have clear HR guidelines on pre-screening searches
- Record the basis for your decisions. Do not discriminate!
- Do not ask medical questions until a conditional offer is made and even then, only ask medical questions where there is a legitimate reason to do so
- Do not randomly search the public domain and, if you do, give the employee a copy of the background information collated and give them an opportunity to comment
While an employer is entitled to vet candidates, the key question is what is reasonable and legitimately necessary in the circumstances and when does pre-screening go too far that it breaches a person’s rights and exposes an employer to a claim for damages. Individuals are becoming increasingly aware of their rights and employers should keep the above in mind and put policies in place to protect themselves from litigation and now very significant fines.