Is reference-checking legal?
HR professionals are often able to test job applicants for certain attributes that are necessary in some jobs. However, in terms of qualities such as honesty, reference-checking has always been the key screening technique.
Unfortunately, many employers do not bother to check references or know how to set up and carry out proper reference checks.
This frequently results in the HR professional taking the applicant’s word that he has the necessary skills to be able to do the job. This often ends up in poor work performance, an angry employer and an even angrier CCMA commissioner if the employee gets fired unfairly.
3 problems you could encounter with reference checks
However, even if you, the employer, have religiously and expertly carried out thorough reference checks, you will be saddled with three problems:
1. South African Constitution;
2. International Labour Organisation (ILO) Code of Practice; and
3. Employment Equity Act (EEA).
For example, in terms of section 14 of the constitution, everyone has the right to privacy. You could argue that the employee’s performance in his job is not a private matter but rather a business matter. This may be true in the employee’s current job but performance in a previous job could well be seen as private.
The constitution does not clarify this and no other legislation does this either. This means that you need to be very careful when you take and give employment references.
Cover these 4 points when you check references
1. Get the job applicant’s consent before you check his references.
2. The information the candidate gives you must be the truth.
3. The referee must have a legitimate interest in giving you the information. For example, if a job applicant puts down his former manager as a reference, that referee must indeed be his former manager and not someone who is pretending to be the candidate’s former manager.
4. You must have a legitimate interest in receiving the information. For example, you can only phone a candidate’s references if you are considering employing him and you need references on him to see if he can perform the role.
Beware: Most employers are vulnerable to employee dishonesty!
When employing new staff, make the right decision! Just one unscrupulous individual can do untold damage.
When you’re hiring staff for, e.g. your finance department, get expert advice on how to devise an applicant-screening strategy. This strategy should detect dishonest tendencies in candidates but it must not infringe on the applicant’s constitutional and other legal rights.
5 methods you can use to check references
1. Criminal check: This establishes if the applicant has a criminal record.
2. Financial check: During this process, the service provider finds out if the candidate has any recorded judgements, bankruptcies, etc., against him.
3. Driver’s licence check: Using this process, you’ll be able to check if the candidate has a valid driver’s licence. This is useful when driving will be part of his job.
4. Educational qualifications check: Using this, you’ll be able to verify any qualifications that a candidate has obtained.
5. Character references and verification of previous employment: Contact previous employers to gather information on:
- A candidate’s previous employment and experience; and
- His previous work performance and conduct.
Because it is very difficult to terminate the employment of unsuitable employees, use the above pre-screening systems in order to avoid hiring the wrong people.
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Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . |
