Insights

13/11/2013

Looking to hire?

When you are looking to hire someone, you may wonder what you can ask and what you cannot during the interview process. One misstep and a potential candidate might get the wrong impression about you and your company – or, worse still, accuse you of employment discrimination. In your search for the right person, you may want to keep a few things in mind.

Finnish law does not provide a list of questions that an employer can or cannot ask during a job interview. However, when assessing what kind of questions should be avoided, privacy and anti-discrimination laws play an important role. It should also be noted that using Google or other search engines on the Internet may not be allowed.

The privacy of a job applicant is protected by the Act on the Protection of Privacy in Working Life and the Personal Data Act. Additionally, in order to avoid discrimination claims, an employer should take into consideration the obligations arising from the Non-Discrimination Act and Act on Equality Between Women and Men.

Request only necessary information

The key requirement set forth in the legislation is the necessity requirement. An employer may only process information that is directly necessary for the employment relationship. Therefore, whether or not the question is deemed appropriate depends on the position and its requirements.

In addition to the necessity requirement, an employer must take into consideration the requirements regarding non-discrimination and equality – and bear in mind the extended protection against non-discrimination.

According to the Non-Discrimination Act, an employer is not allowed to discriminate based on a person’s age, ethnic or national origin, nationality, religion, belief, opinion, health, disability, sexual orientation or other similar reasons. In addition, pursuant to the Act on Equality Between Women and Men, an employer cannot discriminate based on a person’s gender, pregnancy or childbirth.

Any questions related to the above-mentioned matters may lead to the presumption of discrimination, which places the burden of proof on the employer. This presumption may be difficult to rebut. In a possible dispute, an employer must prove that there was no breach of the anti-discrimination provisions, which in practice usually means that employer must prove that there were objective grounds not to hire the candidate.

What not to ask

Allegations of discrimination may be avoided by focusing on matters that are relevant for the position. This practice also complies with the requirements set to protect the candidate’s privacy.

Although no exact list of do’s and don’ts can be made, it is a fairly safe to say that in most cases questions regarding the candidate’s marital status, ethnic background, religion or sexual orientation are not justified based on the necessity requirement. These questions may be difficult to justify, and they may often give rise to the presumption of discrimination.

Questions regarding the candidate’s health may be justified only to the extent directly relevant for the position. As also these questions may give rise to presumption of discrimination, they should only be used if the position actually imposes demands on the candidate’s health and the employer is able to demonstrate this.

Additionally, all of the candidates should be asked the same questions as oppose to requesting this information only from those candidates who seem to have lower working capacity, for example, based on their physical appearance or information submitted in their CV.

It should also be noted that if the employer later on finds out that the employee has provided untrue information during the interview when he/she was asked a question that may be interpreted discriminatory the employer may not take any legal measures due to employee’s dishonesty.

Can I Google the candidate?

Based on Finnish law, an employer is allowed to collect information on the candidate primarily from the candidate himself/herself. Information may be obtained from somewhere else only with the candidate’s consent.

Using Google or other search engines on the Internet during the recruiting process may also be problematic. Even if it is not prohibited to ‘google’, information obtained when googling cannot be collected or used during the recruiting process.

It should also be noted that the information obtained by googling may be inaccurate or concern another person with same name as the candidate. Collecting and using this information requires the consent of the candidate.

If the information has been obtained without his/her consent, the candidate should be notified prior to making any decisions and should be given the right to access the information collected by the employer to evaluate its accuracy.

Headhunting generally permitted

The restrictions regarding googling and collecting information apply to candidates that have applied for the position, but in general not to headhunting.

The Personal Data Act allows headhunters and others to find suitable candidates through the Internet, so long as the material you are searching for concerns generally available information regarding the professional status, duties or performance of a person.

However, as soon as the person becomes an applicant, the employee’s privacy is covered by the Act on the Protection of Privacy in Working Life.

Where you need to get consent

When the candidate has included referee information on the application or provides this information during the interview, it can be interpreted as consent to collect information from the named person. However, it should be noted that the consent is limited to that specific person, and the employer cannot contact anyone else form the same organisation.

The use of drug tests and personality and aptitude tests, as well as the processing of the candidate’s credit information, are also regulated by law. Drug tests, as well as personality and aptitude tests, require the candidate’s consent. If the statutory requirements for requesting credit information are fulfilled, no consent is required, but the candidate should be notified prior to obtaining the information. Additionally, the candidate must be informed of the register that is used to obtain the credit information.

Where to gather information?

The safest route to gather information is to collect information directly from the candidate and the named referees, and request consent if information is collected from other sources. Googling without the consent of the candidate is not recommended, as the employer may have difficulties to exclude any information found by googling from his/her mind prior to making any decisions.

If the requirements are met, the use of drug tests and requesting credit information may be recommended to evaluate the candidate’s reliability. Additionally, personality and aptitude tests may also add value to the recruitment decision.

Even if these methods require consent, it is unlikely that a candidate with a genuine interest in the open position would decline. If the employee does not consent, the employer may draw conclusions for the reasons behind refusing consent.

Fines and criminal sanctions are possible

If the provisions of the Non-Discrimination Act are violated in connection with the recruitment process, the candidate may claim indemnity in the amount of EUR 15,000.

If the employer is deemed to breach the obligations under the Act on Equality Between Women and Men, the candidate may be entitled to an indemnity in the minimum mount of EUR 3,240.

The maximum amount set for the indemnity (EUR 16,210) is only applicable if the employer is able to demonstrate that the candidate would not have been selected even if the choice had been made on non-discriminatory grounds. Otherwise, the Act does not provide for a maximum amount of indemnity.

If personal information is collected and processed contrary to the provisions laid down in the Act on the Protection of Privacy in Working Life and the Personal Data Act, the representatives of the employer may also face criminal liability.

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