Downloading Pornography a Good Cause for Candidate Rejection?
Wednesday, March 9th, 2011
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A client rang the office recently in something of a panic. She had rejected a candidate for the vacancy of payroll clerk, quite properly as she saw it. But subsequently several of her colleagues had told her that she had left herself and the organisation vulnerable to legal action. She had, they suggested, breached laws governing discrimination, data protection, rehabilitation of offenders and criminal records. Fortunately we were able to assure her that, though her colleagues no doubt meant well, they had been unhelpful and were seriously misinformed. She rang off clearly relieved when we had given her the following information.
Our client had produced a shortlist of two good candidates for this vacancy, each of whom had given permission to contact their previous employers for references. When asked at interview the reason for leaving the previous job one of the candidates indicated that it had been a matter of computer misuse. His reference was rather vague on the issue so the candidate was telephoned and asked to be more specific. He then said that he had been dismissed for downloading pornography at work. Our client therefore rejected this candidate in favour of the other one who promptly accepted the offer. And that is when the helpful colleagues stepped in to cause alarm.
The first question is whether our client acted properly in rejecting a candidate who had downloaded pornography on a previous employer’s computer system, and the answer is “yes”. But she would have acted equally properly if she had recruited the candidate. In most cases the law leaves such a decision to the employer, but good management practice requires that it reflects the standards of the organisation and not the individual manager. Our client dealt well with the issue by discussing it with the chief executive. Some employers would totally reject the idea of employing anyone who had downloaded pornography. Others might consider that dismissal had been sufficient punishment, the person would have learned a lesson and therefore could be trusted not to repeat the practice. So if you are faced with a candidate who has committed a serious offence you should apply the standards of your employer and not your own values.
In some sectors, however, standards are set by external bodies. Candidates for many appointments in banking, dealing with children, caring for the elderly and infirm, for example, are required to demonstrate a satisfactory history and employers are required to obtain references and make criminal record and other checks to prove this. If you are responsible for recruitment you must check whether you are subject to any such controls and, if you are, you must take care to operate within the prescribed standards.
Rejection of a candidate would constitute unlawful discrimination if it were based on colour, race, age, nationality, ethnicity, religion, belief, gender, sexual orientation or married status. If there were reason to believe that the unsuccessful candidate might have a case, for example he was rejected in favour of a woman or the interviewer made a caustic comment about the candidate’s religion or ethnic origin, the Employment Tribunal would hear the claim in which case the onus would be on the employer to demonstrate that rejection was based on other, non-discriminatory reasons. This emphasises the importance of making notes during the interview and recording the rationale leading to your subsequent decision. Our client rejected her candidate for a reason other than those listed above, therefore no unlawful discrimination took place.
The Rehabilitation of Offenders Act might have been an issue for our client only if the candidate had been prosecuted and sentenced for his offence. The slate is wiped clean after a set period following which the person may lawfully deny the offence and sentence. This period is on a sliding scale ranging from two years for a probation order to a maximum of ten years for a sentence of 30 months imprisonment, regardless of the length actually served. Longer sentences are never wiped clean. Moreover the Act does not apply to certain professions such as medicine, law, accountancy and employment in social services, nursing homes or work with young people. Since none of this applied to the candidate, neither our client nor the candidate was affected by the Act.
Nor was data protection an issue. The reference provided on the candidate was not misleading and in any case was not shown to him since it was provided in confidence. Had he been recruited our client would have been obliged to show the employee the reference on demand, though without disclosing its author.
So what lessons can we draw from this case?
- Keep careful notes during interview and set out your decision and reasoning clearly in writing.
- Apply the standards of your organisation and not your own prejudices or values when assessing candidates’ past behaviour.
- Determine whether you are required to conform to external standards when recruiting.
- Ensure that you do not inadvertently discriminate unlawfully, and remain aware that the onus is on you to prove that you did not do so.
- Be aware that, after a set period, someone is entitled to deny a criminal record.
- Do not be panicked by colleagues. Attend one of our one-day employment law courses – and ideally bring them along with you. Then you will all know what you are doing!
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