Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
What are the requirements relating to advertising positions?
There is no general statutory framework governing recruitment and selection. However, employers should always guard against discrimination. Discrimination (direct and indirect) in access to employment is prohibited on the grounds of:
- disability or chronic illness;
- marital or civil status;
- sexual orientation;
- religion or beliefs;
- political orientation; and
Direct discrimination occurs where a person is or would be treated differently on the basis of one of abovementioned discrimination grounds (eg, a recruitment campaign in which the employer is only looking for candidates younger than 45 years). Indirect discrimination occurs where an apparently neutral provision or method applies standard to everybody but results in people with the abovementioned characteristics being put at a disadvantage (eg, an employer failing to allow time off for religious holidays).
The prohibition against discrimination covers all stages of the recruitment and selection process, including:
- the wording of job advertisements and job descriptions;
- selection criteria;
- the conduct of interviews, including questions and comments made during interviews; and
- the final selection decision.
Notwithstanding the lack of laws on recruitment, some general recruitment guidelines are in place (eg, candidates must be treated equally and information supplied by candidates must be treated confidentially and with care). Job advertisements may specify only requirements that are necessary to carry out the work involved. Only gender-neutral words may be used in advertisements. If age limits are specified, the grounds for these must be clearly stated.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Employers can ask the potential employee for a certificate of conduct. This is a document in which the state secretary for security and justice declares that the applicant has committed no criminal offences that are relevant to the performance of his or her duties. However, this is allowed only for certain functions and positions.
Reference is made to the Dutch Association for Personnel Management and Organisational Development (NVP) Recruitment Code, which contains the basic rules that (in the NVP’s opinion) should be observed by recruiting companies and job applicants during recruitment and selection process. These rules also relate to the wording of recruitment campaigns and psychological and medical assessments, among other things.
(b) Medical history?
The rules on this are governed by the Medical Examinations Act. The employer can ask the potential employee for a medical record. However, this is allowed only under certain conditions. The nature, content and scope of the examination must be limited to the purpose for which it is performed.
(c) Drug screening?
This is possible only for very specific positions (eg, a position with the police).
(d) Credit checks?
This is possible only for very specific positions (eg, a high-level financial position).
(e) Immigration status?
If the potential employee is an immigrant, he or she must submit his or her relevant immigration information (eg, a residence and work permit).
(f) Social media?
This is not regulated as such, although it is advisable to use social media in moderation in terms of background checks, given the limited value of social media postings.
Click here to view the full article.