This is the second article in a two-part series looking at how to reduce the chances of recruiting unsuitable staff while avoiding the pitfalls of other legislation. Part one focused on recruitment and complying with the Privacy Act. In this article we will look at recruitment and complying with the anti-discrimination legislation and in particular, avoiding an adverse action claim from a prospective employee under the Fair Work Act.
Schools that look at social media sites as part of their recruitment procedures will need to navigate around the additional hazards of "adverse action" claims under the Fair Work Act. While this risk applies to any recruitment action, using technology, that is, visiting a social media site, can leave a trail which an "off the record" telephone conversation with a referee does not.
The crux of "adverse action" is that where a school has decided not to employ an individual, the individual may claim that they were rejected because the school made their decision on the basis of a "prohibited reason" or their decision included a "prohibited reason".
Under the Fair Work Act "prohibited reasons" include discriminating on the basis of an attribute that is protected under anti-discrimination laws. And while there are five main pieces of legislation at Federal level which deal with preventing discrimination, the Fair Work Act also ropes in any State or Territory anti-discrimination legislation which applies to a particular employer. Fortunately, you only have to comply with the Federal legislation and your own State/Territory legislation, not all of the combined legislative requirements. (For more information refer to our previous articles on various anti-discrimination legislation School granted anti-discrimination exemption to maintain gender balance quota and Ethos clauses in employment agreements – how far should they go?)
What that means in practice is that when a school is conducting rigorous background checks, for example as expected in the new Victorian Child Safe Standards, schools should be careful to ensure that they do not take into account attributes that are protected by law and anti-discrimination legislation. For example, if a school conducts a background check on a potential candidate and discovers through the candidate's Facebook page that they are in a homosexual relationship, pregnant, unmarried but living with a partner, or are a member of a trade union, and the candidate misses out on the job, the candidate may allege that the school made its decision not to employ them on the basis of that prohibited reason.
There are a number of steps that a school should take in mitigating its risks of adverse action. One of the key things to keep in mind is to determine the essential inherent requirements of the position for which you are recruiting. You need to ask: what is really necessary to perform the job, and what impact will the person have on others, in particular on vulnerable others such as students, or are they working only with mature adults. The gender of a teacher may be relevant in some circumstances for example teaching sports in some faith-based schools. Will a person who is not overtly gay and who has little contact with students really make a difference? Can the person's disability really prevent them doing the essential requirements of the job, or can they do it if the school makes "reasonable accommodation" as required by disability discrimination legislation?
These essential requirements should be clearly reflected in the job description, the job advertisement, when conducting pre-employment checks, and most importantly in conducting the interview and making the decision.
Faith-based schools have been particularly vulnerable in the area of discrimination; the good news for them is that the (limited) exemptions in some anti-discrimination legislation are carried over to the application of the "adverse action" provisions in the Fair Work Act, so if your recruitment decision was based on a "prohibited ground" but your State/Territory legislation provides an exemption then you will in most cases not be liable for "adverse action". However, the same need to ensure that the requirements are an inherent requirement of the job, still applies (legal advice in specific cases is also recommended).
For instance, religious schools may be allowed to discriminate on the basis of a personal characteristic when selecting or appointing a candidate, where the selection criteria clearly articulates that the candidate would be expected to perform functions relating to, or participating in the school’s religious observance or practice as part of their employment. A school may take into account a candidate’s religious belief or activity where it is deemed necessary to ensure that the appointed candidate will conform to the doctrines, beliefs or principles of the religion or it is deemed as reasonably necessary "to avoid injury to the religious sensitivities of people who follow the religion". ''Reasonably necessary'' requires an objective assessment of whether the discrimination is necessary and care should always be taken when considering a candidate’s personal characteristics that would otherwise be considered as prohibited reasons for the purposes of the recruitment process.
Recent recruitment guidelines issued by the Catholic Education Commission of Victoria recommend an elegant way of addressing faith-based criteria, by looking to the elements which make up the inherent requirement rather than more obvious markers which may or may not be evidence of meeting that criteria. For example, in recruiting a teacher for a faith-based school rather than asking whether they have been baptised/ inducted into the religion, the more critical aspect may be that the applicant needs to "understand, commit to and adhere to the principles of Catholic education". This goes to the heart of the job requirement, and allows a broader way of checking that the applicant is suitable - for example, looking at their Facebook page. This approach can also be applied for non-faith-based criteria, for example where a school wishes to ensure that a person is of "good character".
However, no matter that a school made the decision on completely proper grounds, a rejected candidate can still make an adverse action claim. This is where it becomes critical that the school is able to provide evidence that its decision not to employ the individual was not based on a "prohibited reason". When faced with an adverse action claim, clear and consistent job descriptions, job advertisements, questions asked at interview, and a written selection decision which set out the inherent requirements of the position and how the candidate met or did not meet those, will go a long way to protecting your school.
