KEY POINTS:
Q I recently employed someone who has been working for us for about three weeks. He deals with lots of our customers and after he had been with us only a week he asked for time off to attend a court hearing. I asked him what it was about but he wouldn't say. Now he also won't tell me what happened during the hearing. I am worried he could have a criminal conviction and might have a previous criminal record. I don't run any checks on people before I employ them at the moment, except to check their references. In future I would like all job applicants to fill out a form about their history before they start work. What sorts of things should I be asking them?
A It is quite common to ask employees to fill out a pre-employment questionnaire. A well-written questionnaire can help prevent employers hiring someone who is unsuitable. There are also a number of checks you can run on prospective employees, with their consent. The applicant's criminal record is certainly one thing you should ask about. You could ask whether they have ever been convicted of a criminal offence. The employee you have at the moment went to court very soon after he started working for you. So he may have already known about the court hearing before he started working for you. To prevent this happening, you could ask job applicants whether they are currently waiting for any criminal charges against them to be heard.
The court hearing your employee attended might have related to driving offences. I suggest you ask job applicants whether they have any driving licence demerit points and whether they have any court cases pending which could affect their driver's licence. You already check applicants' references, which is good practice. It is also a good idea to ask applicants directly why they left their last job.
There are other questions you could ask, although they do not relate directly to criminal convictions. The types of questions that will be suitable depend on the nature of your business. They could include:
* Questions whether the applicant is involved in anything that might conflict with working for you, such as another job or outside interests.
* Whether there is anything you should know about their health.
* Whether they are taking any medication that could affect their ability to do the job they are applying for.
* Whether they are legally entitled to work in New Zealand (and for how long their entitlement lasts if they have a work permit).
* Whether they have ever been declared bankrupt.
* You should also ask for supporting documentation including copies of qualifications, written references and citizenship or work permit documents.
During all parts of the interview and application process you should be careful not to discriminate against a job applicant on any of the prohibited grounds in the Human Rights Act 1993. The prohibited grounds include:
* Sex (including whether they are pregnant)
* Marital status
* Religious belief
* Ethical belief
* Colour
* Race
* Ethnic or national origins
* Disability
* Age
* Political opinion
* Employment status
* Family status
* Sexual orientation
So you should generally avoid questions that appear to relate to any of these prohibited grounds of discrimination. Examples of the sorts of questions that should generally be avoided include asking applicants whether they intend to have children, what religion they are or which political party they vote for. There are some exceptions. For example, religious organisations could have good reason to ask about a job applicant's religion.
Finally, you may wish to consider asking for applicants' consent to run checks on them. Again, the sorts of checks that are appropriate depend on the nature of your business. Available checks include police checks, credit checks, medical checks and drug testing. If the employee consents and the check is appropriate, there are agencies that will run the checks for you. It is best for a pre-employment questionnaire and pre-employment checks to be tailored to your particular business.
If you do not already have someone with the skills to draft a questionnaire for you, I suggest you contact a human resources consultant or employer lawyer for specific advice about your circumstances.
* Rani Amaranathan is a solicitor in the employment team of transtasman law firm, DLA Phillips Fox.
