Our Labour Specialist Provides Insights
Quick Summary:
Author: Amy-Lee Landmesser
Amy-Lee is currently pursuing her degree in Human Resources
Reviewed by: Marike Wessels
Marike Wessels LLB, LLM
Senior Associate (WC)
When last did you consider whether job advertisements and the subsequent process have any legal requirements?
Exactly!
We break down the legal requirements of placing an job advertisement and the recruitment process in simple terms.
Legal requirements for job advertisements:
Job advertisements must always comply with the Employment Equity Act of 1998, which strictly prohibits discrimination based on an individual’s:
- race,
- gender,
- age or religion.
Unless it is inherently necessary for the job requirements.
Example: if the nature of the role requires specific physical or mental capabilities, this must be clearly stated in the advertisement.
In addition to the Employment Equity Act, employers are required to adhere to the Basic Conditions of Employment Act, the Constitution and all other applicable labour regulations.
Fair recruitment practices:
A fair and transparent recruitment process is essential. Employers should craft job advertisements that focus clearly and transparently on the essential duties and required skills of the role, steering clear of language that could unfairly exclude qualified candidates.
In order to attract a diverse and qualified pool of applicants, it is beneficial for businesses to promote vacancies through multiple channels, including digital platforms, print media and industry-specific job boards.
Employers should be able to justify their hiring decisions based on objective, job-related criteria and not on personal bias or discriminatory considerations.
Additionally, posting job vacancies internally before advertising them externally not only fosters a sense of opportunity and growth among current staff but can also boost morale and employee engagement.
A good rule for employers to adhere to is to stay aligned with legal and ethical standards, as it is good practice to regularly review and update recruitment policies, which ensures they promote fairness, equality, and compliance with current labour laws.
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Background checks and reference verification:
Obtaining informed consent is a fundamental part of conducting both background and reference checks during the recruitment process. According to South Africa’s Protection of Personal Information Act (POPIA), employers need explicit permission from candidates before performing any form of background screening.
Transparency is key; therefore, candidates should always be informed about which checks will be conducted, why they are necessary and how the information will be used.
Employers should take every step to ensure that the data obtained is accurate, up-to-date and relevant to the position being filled.
It is worth noting that polygraph testing is generally restricted and if used, must comply with strict legal and ethical guidelines.
Reference checks should stay focused on job-specific information such as a candidate’s performance in previous roles, their reliability, their work ethic and their overall suitability for the new position.
Previous employers are not legally obligated to provide detailed references and they may issue a certificate of service.
Keep in mind, references are not always entirely objective; therefore, judgement and cross-verification are important.
Questions that are legally impermissible during an interview:
It is important to note that the constitution and employment laws prohibit employers from asking questions during an interview that include certain personal attributes, such as questions about a candidate’s race, gender, medical history, religion, sexual orientation, disability, age, marital status, family responsibility and pregnancy.
Similarly, an employer is not allowed to refuse to hire an individual based on any of the aforementioned, as this would be considered discrimination.
Employer Recruitment and Hiring Checklist
Job Advertisement
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Ensure the advertisement complies with the Employment Equity Act.
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Avoid discriminatory wording based on race, gender, age, religion, disability, or other protected characteristics.
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Clearly describe the essential duties, skills, and qualifications required.
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Only include physical or mental requirements when they are genuinely necessary for the role.
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Consider advertising the vacancy internally before advertising externally.
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Use multiple recruitment channels to attract a diverse pool of applicants.
Recruitment and Selection
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Apply the same fair and transparent process to all candidates.
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Assess candidates using objective, job-related criteria.
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Keep clear records of the reasons for hiring decisions.
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Avoid decisions based on personal bias or discriminatory factors.
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Regularly review recruitment policies for fairness and legal compliance.
Background and Reference Checks
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Obtain the candidate’s informed consent before conducting checks.
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Explain which checks will be conducted and why.
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Only collect information that is relevant to the position.
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Ensure all information is accurate and up to date.
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Use reference checks to confirm performance, reliability, work ethic, and suitability.
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Cross-check information where possible.
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Use polygraph testing only when legally and ethically justified.
Interviews
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Ask questions that relate directly to the role.
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Do not ask about race, gender, religion, age, disability, pregnancy, marital status, sexual orientation, medical history, or family responsibilities.
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Do not reject a candidate based on a protected personal characteristic.
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Ensure all interviewers understand fair recruitment requirements.
Final Review
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Confirm that the full recruitment process complies with applicable labour laws.
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Store candidate information securely and in line with POPIA.
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Ensure the final hiring decision can be justified using fair, objective, and job-related reasons.