Navigating the interview and hiring process around the world

UK employers which are recruiting should pay attention to the Equality Act 2010 which prohibits discrimination in relation to the nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion and belief; sex and sexual orientation. The Act makes clear that employers must not discriminate when choosing employees or setting their terms. This covers the format and content of application forms, the timing and location of interviews and any specific job requirements an employer attaches to a position.

Claims of discrimination can be brought by job applicants, not only against the prospective employer, but also any employees and recruitment agents who were responsible for discrimination or harassment. Such claims can result in high awards of compensation being made against an employer, and can also be reputationally damaging – the opposite of what any employer wants when competing for talent in today’s market.

The first thing a prospective employee sees when undertaking their job search is an employer’s job advertisement. Whilst employers will want to innovate to make their adverts appealing and attractive, they need to be careful to ensure that adverts do not contain wording that could discriminate, directly or indirectly. For example, job adverts should not include wording that suggest adjustments will not be made for disabled people, or that they should not bother applying. They should also avoid the use of phrases, such as, “recent graduate” and or “highly experienced”, which could also lead to claims for age discrimination; and when it comes to sex, gender neutral terminology is key. A wise employer will ensure that the wording of its job adverts are checked carefully by HR to ensure that they only reference real requirements for the role, and do not inadvertently use terminology that may give rise to a discrimination claim.

It is, however, lawful for an employer to advertise for someone with a particular protected characteristic where there is an occupational requirement. For example, if the role were to involve intimate care tasks relating to woman, it may be an occupational requirement for the role of care worker, for the applicant to be female. 

When it comes to disabled applicants, employers must ensure that they make reasonable adjustments during the application process when required. This will include providing and accepting information in different formats, which are more accessible for the disabled person.

Consideration should be given to where a job advert is placed. For example, placing an advert only in a magazine advertised as a “men’s magazine”, predominantly read by men, could cause discrimination. Online adverts only may not reach older or disabled workers, for example.

Employers should recognise that terminology of job advertisements is not just a legal issue. When it comes to the global race for talent, employers will want to ensure that they are not discouraging specific individuals, or groups of individuals from applying. For example, it has been reported that the use of certain words can put women off from applying for jobs.

Interview

It is critical that those conducting interviews do not make decisions based on prejudice and sterotypes, but focus on what is relevant to the job description. A wise employer will ensure that those involved in interviews and selection panels have had equality training, to help them avoid making assumptions based on stereotypes, or asking questions that are not relevant to the requirements of the job. Questions related to protected characteristics, such as those relating to marital status, childcare arrangements or living arrangements must be avoided.

Questions about disability or health can only be asked if health or disability is a necessary requirement of the job that can’t be met with reasonable adjustments, if the employer is trying to find out if a candidate needs adjustments to take part in selection, or positive action is being used to recruit.

When it comes to arrangements for interviews, employers must give consideration to whether any reasonable adjustments should be made to enable a disabled employee to attend. An employer should ensure that it has already asked whether any reasonable adjustments are needed for the interview either in the application for, or the letter inviting the candidate for interview. 

Employers need to be aware that applicants do need to inform you of any spent criminal convictions and, if they do, an employer must treat the applicant as if the conviction has not happened.

Offering the job

An employer must not discriminate against a person in the terms on which it offers employment. For example, it would be unlawful for an employer to change its usual practice relating to probationary periods, offering a longer probationary period to someone who has just returned for maternity leave, or who has a disability because of their perception that due to these factors a longer period to assess their capabilities is required.

Positive Action

Employers may want to take a more targeted approach to recruitment, particularly in respect of groups underrepresented in their organisation. This is common in sectors such as infrastructure and energy, where the workforce is predominantly male. The Equality Act contains provision relating to positive action, which in essence mean that it is not unlawful for an employer to take special measures aimed at alleviating disadvantage or under-representation experienced by people with a protected characteristic. Some examples of positive action are: placing job adverts to target particular groups; including statements in job adverts to encourage applications from under represented groups; or hosting open days to encourage under represented groups into a particular field. Positive action is a powerful tool when it comes to the race for talent when used correctly. However, employers need to be cautious, making sure that they understand what is meant by positive action, and importantly its legal limitations, so as not to cross the line into positive discrimination, which is unlawful.

Tech savy recruitment

We are seeing many employers exploring more tech savy ways to recruit, including an increased reliance on artificial intelligence tools. AI can be used to perform sifts of CVs and application forms or to search for prospective employees’ on social media using key phrases or terms. It can even perform automatic filtering of candidates through online assessments and tests. The use of AI does not come without risks. AI systems are only as good as the data and programming that informs decision-making. If this biased, consciously or not, the outputs will be biased. This is a legal risk but also an operational one, because it could exclude pools of talent.

German HR and recruiting professionals should particularly be aware of the General Equal Treatment Act (Allgemeines Gleichstellungsgesetz/AGG) and the partly very restrictive case law regarding discrimination in the context of application procedures. Other notable areas are data protection (GDPR), the inclusion laws for severely disabled persons in the Social Code, Book Nine (Sozialgesetzbuch/SGB IX) and the co-determination of works councils according to the Works Constitution Act (Betriebsverfassungsgesetz/BetrVG).

According to sections1, 7 and 11  AGG any discrimination of applicants on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation is illegal and can lead to damage and compensation claims. For example, vacancies must always be advertised in a gender-neutral way and may only require "perfect language skills" if necessary but never “mothers’ tongue”. Also advertising for “young professionals” is deemed discriminatory. 

In a series of spectacular cases which went on for over 10 years it was for example decided that it’s discrimination on the grounds of age to advertise a position for a “young and dynamic team” or to limit the scope of applicants by searching for people “whose university degree was obtained no longer than one year ago”.

Another important rule is to ask applicants only questions that are of legitimate interest to the employer regarding the position to be filled. Questions about pregnancy, family circumstances, religious denomination and origin are generally inadmissible and may therefore be answered untruthfully by the applicant. Questions about health and previous illnesses or mandatory health checks may be justified, if clearly relevant for the specific position. Asking questions or demanding records on criminal activities is generally only admissible in certain sensitive areas and only as far as of relevance for the position. In practice that can be problematic because it can be hard to determine which types of previous convictions are relevant.

Special rules must be observed in case of applications from severely disabled people. In particular, the works council and the company representative body for severely disabled persons must be involved immediately in the case of a corresponding application (section 164 SGB IX). Public employers must always consider severely disabled persons in the application procedure unless their suitability for the job is obviously lacking (section 165 SGB IX).

A general rule of thumb to prevent AGG-claims in this context is: if you find any, maybe even hidden, reference to a disability in an application - invite the applicant to an interview. This is usually sufficient to prove that disability was not the cause in case of a rejection. The same applies if, by accident, a potentially problematic job advertisement has been published and you receive suspicious applications.

Data protection law also plays a major role in the context of job applications. The employer must ensure compliance with GDPR and national data protection laws through suitable internal processes. For example, application documents must only be viewed by the responsible contact persons and collected/stored data must be subject to adequate deletion concepts. 

In some cases, companies make use of so-called "applicant screenings", during which the applicant's details are checked and further information is collected, such as from EU terror-lists. Whether these screenings are lawful must be examined based on the specific individual case, weighing the employer's interests against the employee's personal rights.

If a works council exists, it must be comprehensively involved in recruitment processes. The employer must internally inform it before each recruitment and submit all necessary application documents of all applicants (section 99 BetrVG). The works council can reject a recruitment for specific reasons, such as if other employees would suffer disadvantages because of the recruitment. Although the works council can practically not block a recruitment effectively, a missing consent can lead to high administrative efforts, often including a special labour court proceeding. And of course, it’s also not a desirable start into a new employment relationship for the recruited talent. The works council must be informed about personnel planning and can demand that positions are being advertised within the company first (sections 92, 93 BetrVG).

These and more legal aspects should also be considered when working with modern, digital, or even unconventional recruitment tools. To win the race for talent it’s of course crucial to present yourself as an attractive and exciting employer brand. Nevertheless, it’s just as important to do this in a professional, transparent, and legally compliant fashion. Primarily not even because of potential negative legal consequences, much more so, as todays talents are usually well aware of their rights. Mistakes and insensitive practices can be a deal breaker for the people you seek to recruit and can damage your employer brand.

During the hiring process, the employer does not have complete freedom in the use of recruitment methods and techniques. These must be relevant and serve to assess the candidate's skills. In other words, the employer considering recruitment is not allowed to ask the applicant non-related question, nor to use non-related assessment method. In addition, the candidate enjoys protection during the recruitment process, particularly with regard to discrimination and privacy. The members of the Social and Economic Committee, for their part, are responsible for ensuring that the employer complies with these principles, particularly by monitoring the recruitment techniques used by the company.

The methods and techniques used to assist recruitment must be known by the applicant. According to the European Data Protection Regulation (GDPR), job applicants must also be informed of how their personal data will be used and stored. Such transparency follows several purposes.

The transparency of the hiring methods and information avoids the use, during recruitment, of criteria constituting discrimination within the meaning of Article L. 1132-1 of the Labour Code. Any candidate who has been dismissed or not hired in a discriminatory manner may claim damages for the harm suffered. Furthermore, discrimination is punishable under the Criminal Code.

Therefore, companies should be careful about how they write their job offers and the questions they ask candidates. Thus, job offers that stipulate a minimum age, a fixed place of residence or the sex of the applicant should be reviewed and such criteria shall be justified by objective reasons.

Some companies are reviewing their recruitment procedures to encourage diversity. For example, selection criteria are being eliminated to encourage the integration of apparent minorities who would otherwise be excluded. Although the effort is admirable and may raise the company’s profile, such process is not without risk insofar as its legality under French is unclear. Indeed, such provisions exist in relation to the employment of women, disabled people, young people and older people. However, there is no provision for other forms of discrimination, including ethnic origin.

All information asked for during the hiring process must have a direct and necessary link with the job offered or with the assessment of professional skills (article L. 1221-6 of the Labor Code). A recruitment questionnaire cannot, for example, contain questions about the employee's political opinions, sex orientation, alleged racial or ethnic origin, religious or philosophical beliefs or trade union membership, or on the activities of his or her spouse. The consultation of criminal records is also highly regulated and very rarely permitted under French law.

As long as the questions comply with the legal requirements regarding their purpose and their link with the proposed job, the persons concerned must answer in good faith (art. L. 1221-6, para. 3 of the Labor Code). It also means that the candidate may refrain from answering private/non-compliant questions and even give a false answer, without any sanction being levied against them later on in the employment relationship.

The Social and Economic Committee shall be informed, prior to their use, of the methods or techniques used to assist in the recruitment of job applicants, as well as of any changes to them. It is also informed, prior to their introduction into the company, about computerized personnel management processes and any changes to them. The elected employee’s representatives may use their right to alert (“droit d’alerte”) if they observe discriminatory practices within the company.

Data protection and discrimination are the two biggest issues for recruiters in Spain to address right from the start of the process.

No requirements relating to the applicant's private situation may be included, nor may a specific gender, age or marital status be specially sought. A study in 2020 indicated that in Spain many discriminatory offers are published based on age bias.

During the interview asking questions regarding personal situation in terms of personal health, marital status and family considerations are considered a breach of the individual’s right to privacy, as well as the right not to be discriminated. This is true regardless of how the information is obtained: direct questioning, blind template or form, or implying the need for information to have the individual convey it without a formal request.

In relation to health issues, they can only be treated through medical examination, in those companies that are mandatory for the development of the worker; however, the company will never know the medical data of the worker, it will only obtain the information of whether he is suitable or not suitable.

Data collected by recruiters for a specific job vacancy can be processed without the separate consent of the applicant. But if people send their CVs for future reference not in relation to an existing vacancy the recipient must act in line with with specifically tailored policies aimed at data management and processing and must preserve confidentiality over all specifics and details of the job searcher.

There are some general requirements for HR and recruiting professionals to keep in mind when recruiting and selecting candidates in the Netherlands, and there may also be sector-specific rules and regulations which may apply to your business.

Equal treatment

Employers must ensure that their recruitment and selection processes are in line with equal treatment legislation. Protected characteristics under Dutch law include religion, belief, political affiliation, race, sex, nationality, sexual orientation, marital status, disability or chronic illness, and age.

Equal treatment legislation allows preferential treatment policies for the benefit of women, people belonging to a particular ethnic or cultural minority group or for the benefit of people with a disability or chronic illness. Such policies must comply with strict conditions. The Netherlands Institute for Human Rights applies the following four conditions. The disadvantage of the privileged group must be made plausible in the specific case. When offering a position, it must be clearly stated that a preference policy is being pursued and that the vacancy is open to everyone. There must be an objective assessment of all candidates. This takes into account the extent to which each of the candidates meets the job requirements. Appointment of a candidate from the preferred group can only take place if the candidate is equally suitable. It must be possible to justify the severity of the preferential measure by the degree of disadvantage the proportionality requirement.

When implementing a preferential treatment policy, employers must also take care to comply with the requirements of the General Data Protection Regulation (GDPR) and related implementation legislation.

Job interviews

The questions asked by the employer during the job interview should be relevant to the assessment of the candidate's suitability for the position. The employer should refrain from asking questions that may give rise to unlawful discrimination claims, such as questions relating to pregnancy or family planning.

The Dutch Medical Examinations Act (Wet op de medische keuringen) prohibits the employer to ask questions relating to the candidate’s health. The candidate is however obligated to inform the employer if the candidate is aware that they have a medical condition that makes them unsuitable for the proper performance of the position.

Data protection

The recruitment and selection process must be part of the data protection compliance program of the employer. To comply with the GDPR and related implementation legislation, it must be ensured that:

• data processing activities are recorded in the record of data processing activities;
• there is a lawful basis for processing the candidate’s personal data;
• the principles relating to processing of personal data are complied with including the data minimisation and storage limitation principles;
• if special category personal data or personal data relating to criminal convictions and offences is processed, the specific rules relating to the processing of such data are observed; and
• the candidate is informed about the processing of their personal data, for example. by a recruitment privacy statement.

Specific consideration must be given to data protection requirements in case the employer uses new technologies in its recruitment and selection process. The employer may for example be required to perform a data protection impact assessment prior to implementation. The employer must also carefully consider if sufficient measures have been taken to prevent unfair outcomes.

Screening

The extent to which screening is allowed needs to be determined on a case by case basis. The employer must ensure that it can rely on a lawful basis for the processing the personal data of the candidate and complies with the other data protection requirements and privacy rights of the candidate. Screening must be tailored to the specific risks associated with a particular position. The Dutch Data Protection Authority mentions as an example that it will not be necessary to carry out credit checks in all cases. However, this may be necessary for certain financial positions.

The Dutch Medical Examinations Act prohibits the employer to subject the candidate to a medical examination except in very specific cases, such as an eye examination for a pilot, and under strict conditions.

References

On the basis of the post-contractual effect of good employment practices, the former employer must take the interests of the former employee into account when giving references about the former employee after the end of the employment relationship. In addition, the parties involved must comply with the GDPR. It is assumed that if the candidate decides to designate his former employer as a reference, they thereby give permission for the provision of their personal data (including data about their performance) to the intended new employer.

Works council

If a works council has been established, it is important to consider its position when it comes to recruitment. Based on the Dutch Works Councils Act (Wet op ondernemingsraden, WOR), the works council has a right of consent regarding, among others, the introduction, amendment or withdrawal of regulations relating to recruitment policies which include rules relating to selection procedures or preferential treatment policies. The works council also has a right of advice in the meaning of section 25 WOR with regard to intended decisions relating to the recruitment or borrowing of labor on a group basis. Finally, the works council has a right of advice in the meaning of section 30 WOR about the intended decision to appoint (or dismiss) a director of the company (within the meaning of the WOR).

There are some important legal considerations for employers in the UAE’s ‘onshore’ jurisdiction when recruiting in the UAE:

Employment Sponsorship

Immigration is intrinsically linked to the employment of foreign workers in the UAE. Specifically, employees lawful employment in the UAE requires that they are sponsored - for UAE residency and work permit purposes - by a locally registered entity.

Working in the absence of the necessary approvals can result in sanctions for the employer and the person. Specifically, and under the ‘new’ UAE labour law that came into effect on 2 February 2022, financial penalties ranging between AED 50,000 and 200,000 can be rendered for working without a work permit

As a condition of a work permit the employer must have a sufficient visa quota. Where the employer has a shortfall in its quota for the specific role, the employer may be unable to employ the individual direct. One possible alternative for the employer would be to hire the worker indirectly through an approved third party manpower company and ‘second’ the individual back to the ‘primary’ employer.

The general position is that the authorities will not issue the work entry visa to a foreign national until the standard form offer letter has been lodged with the ministry of human resources and Emiratisation (MoHRE). To protect foreign employees who come to the UAE to work, the terms and conditions in the subsequent prescribed form (dual Arabic – English language) employment contract must match up with those in the original offer letter.

Emiratisation

UAE employment legislation provides for the positive discrimination in favour of UAE nationals and an expatriate should only be selected for the role where no other UAE national is able to perform the role.  However, and in practise, this has really been policed.

‘Emiratisation’ is an initiative of the UAE government to increase the number of UAE nationals working in the private sector.  The government has various projects in place to promote and further Emiratisation.   For example, and most recently, private sector employers that do not comply with 2% rule will have to pay a monthly fine for every unemployed UAE citizen. Percentage rates for banks and insurance companies are higher at 4% and 6% respectively.  These quotas are set to increase yearly until 2026. 

For companies with a minimum headcount, various roles are reserved for UAE nationals such as that of data processing officer and occupational health and safety officer, the latter generally applying to construction companies only.

Currently, Emiratisation applies exclusively to businesses registered on the UAE’s ‘onshore’ jurisdiction therefore companies registered in the free zones are not subject to the rules and regulations surrounding Emiratisation.

Anti-discrimination

For the first time, the ‘new’ UAE Labour Law sets out anti-discrimination provisions and identifies the following protected characteristics: race, colour, sex, relation, national origin, social origin and disability.  The provisions extend to prohibit unfair treatment on the basis of any of these characteristics in recruitment.

The law is silent with respect to any exemption or occupational requirement as a potential defence to discrimination.  Accordingly, this change in the law will require employers to reconsider their hiring and recruitment practises. Up until now, recruitment not been heavily regulated and it is not unforeseeable that disgruntled candidate will seek to rely on the anti-discrimination provisions under the law and file a claim against the company. For the first time, the labour law contains financial penalties for any breach of the law which can range between AED 5k – 1 million (and for which there would be scope for the Court to apply its compensatory award on top).

The Labour Law requires that females are paid the same as men who perform the same work or work of equal value. The authorities are putting in place criteria for employers to assess what amounts to “work of equal value” therefore the general recommendation for companies is that the need to review their pay policies, grades and scales not only from a gender basis but with reference to all of the “protected characteristics.”

Personnel file

All employers with five or more employees must keep a personal file for each employee and this must be maintained for a period of two years following employment termination. 

In 2022 the UAE interest on data privacy law which is fundamentally similar to the EU's general data protection regulation. This imposes obligations on employers as data controllers when processing the personal data of employees.  Unless the employer is able to show that it processes the data to “fulfil their obligations and exercise their rights in connexion with the employment,” the employer must obtain the employees’ advance written consent to processing their data.

In addition to the privacy law, employers must protect an individual's right to private life - particularly in relation to employee monitoring and “sensitive personal data.”

Singaporean HR and recruiting professionals should be aware of the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP) Guidelines on Fair Employment Practices and Fair Consideration Framework (FCF). TAFEP is a body established by the tripartite partners comprising of the Ministry of Manpower (MOM), National Trade Union Congress and the Singapore National Employers Federation. Other notable areas in the recruitment context include data privacy considerations under the Personal Data Protection Act (PDPA) 2012 of Singapore.

Although Article 12 of the Singapore Constitution broadly prohibits discrimination against Singapore citizens, there is currently no standalone legislative framework which directly regulates discrimination in the employment and recruitment context. This is instead addressed by the Guidelines and the FCF, which together aim to promote fair and merit-based employment practices in Singapore.

According to the Guidelines, employers should recruit and select employees based on merit and, non-exhaustively, regardless of age, disability, family responsibilities, gender, marital status, race, or religion.

For job advertisements, selection criteria should principally relate to the prospective candidate’s skills, qualifications, experience, and knowledge. If an advertised position requires attributes which may be perceived as discriminatory, employers should ensure that they are necessary and justified.

Advertisements that contain selection criteria pertaining to race, religion, age, gender, nationality, marital status, and family responsibilities are generally unacceptable and should be avoided. For example, advertisements which include phrases like “Prefer Chinese Race” or “Must be Filipino” are clearly inappropriate. These were the kinds of descriptions found to have been used by more than a dozen companies in 2013, which were each hit with serious administrative penalties by the MOM.

However, some positions may have specific religious, language, and gender requirements that are justifiable by the nature of the roles; for example, a Mandarin-speaking Chinese language teacher or an imam to perform Muslim prayers. In any case, the selection criteria should always be fair, objective, and clearly stated.

For job application forms and interviews, employers should only request information or ask questions relevant to the assessment of whether an applicant is suitable for the job. Irrelevant information generally includes gender, race, religion, marital status, family responsibilities, disability, age, and photographs. Other avoidable criteria may include health history, languages spoken, and dietary requirements.

Employers should instead obtain personal information at the point of job offer. If an employer specifically requires this information prior to the job offer, it should provide the reasons ­– which must be job-related – in the application form or job interview.

One caveat is that under the FCF, employers must consider Singaporeans fairly for all employment opportunities before electing to hire foreigners. This is not a matter of lip service – employer hiring practices are monitored closely and offenders face considerable penalties. In 2020, a logistics company was charged for pre-selecting a foreign applicant and falsely declaring that it had interviewed Singaporean candidates.

While the Guidelines are not legally binding, the government has committed to enshrining them in law and increasing the severity of penalties for infringement. It should also be noted that in practice, employers are strongly recommended to comply with the provisions of the Guidelines, as enforcement action can be taken by the regulators against employers who are non-compliant.

Possible enforcement action includes the employer being placed on the Fair Consideration Framework Watchlist, which subjects them to closer scrutiny by the regulators.

Applicants and employees can also report unfair or discriminatory employment practices to TAFEP. Companies which fall short of the Guidelines will usually be counselled by TAFEP and asked to adapt any relevant offending practices. If they fail to comply or if the practices are particularly undesirable, companies may also be subject to stiff administrative penalties levied by MOM. They may also have their work pass privileges suspended for a period of time. This will range from 12 months to 24 months for the most egregious cases, and will include both new applications as well as work pass renewals. For example, in 2020, MOM banned five companies from hiring foreign employees for twelve months after they were found to have discriminated against age in job advertisements.

Data privacy considerations are also central to the employment application process. Employers and recruitment agencies must ensure compliance with the PDPA when carrying out recruitment practices.

Employers should generally seek an individual’s consent before collecting, using, or disclosing their personal data. That being said, an individual who voluntarily provides personal data to an employer through a job application will usually be deemed to have consented to their data being used to assess their suitability for the job. However, if the employer seeks to use personal data beyond this purpose, it must inform the applicant and obtain their consent.

The PDPA grants individuals the right to obtain access and request corrections to their personal data. Upon request, therefore, employers must reveal to the job applicant the personal data they possess on the applicant. Notably, however, employers are not required to disclose to the applicant any of the opinions formed about his or her eligibility or suitability for the role.

Anti-discrimination frameworks and data privacy concerns are key facets of fair employment practices that employers should consider when seeking to carry out legally and professionally sound recruitment activities in Singapore. In particular, ahead of the codification of the Guidelines, employers should take extra care to ensure that recruitment activities are compliant with the current frameworks. If not, employers can not only expect to deal with the reputational fallout of non-compliance, but also harsher penalties administered under the full force of the law.