When interviewing any candidate, the Tripartite Guidelines require employers to recruit based on whether the skills, experience and capabilities of the individual meet the requirements of the job,
Julia Yeo, employment law specialist at Clyde & Co, told
HRD.
This should be regardless of age, race, gender, religion, marital status, family responsibilities or disability, she added.
“As such, interviewers should focus on questions that are relevant towards assessing those criteria. Asking a question in relation to the candidate’s pregnancy is likely to flout the guidelines.”
For an obviously pregnant candidate, however, HR may discuss certain work-related matters.
“It may be fine to ask if she anticipates any problems performing her duties if the job requires her to lift heavy objects, stand on her feet all day, or some other physical requirement,” Yeo said.
However, seeking further information on how far along the candidate is and her expected due date would extend into asking discriminatory questions which are irrelevant to the specific requirements for the job.
Unnecessary interview questions about the pregnancy may also contravene the Personal Data Protection Act, Yeo said, since collection of personal data must be reasonable for the intended purpose.
“Information on the pregnancy would not be necessary or reasonable for the purpose of evaluating the candidate’s ability to perform the job.”
Avoiding discriminatory situations
Presumably, proving discrimination has a lot to do with how the job description is drawn up and what questions were asked at the interview, Yeo said.
“It is useful to draw up a set list of questions pertinent to the skills and requirements of the job and consistently apply them to all candidates. HR and interviewers should assiduously avoid questions that veer towards personal background.”
One common mistake is making small talk within the interview, she added. Asking the candidate about simple personal matters such as the number of children they have or who takes care of the children during work hours may seem harmless but can lead to potential legal issues later on.
Ramifications of discriminatory interview practices
The Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP) encourages employees who “feel” they have been discriminated against to lodge a complaint. These will be referred to the Ministry of Manpower (MOM) to investigate, Yeo said.
“Employers who have discriminatory hiring practices may find themselves placed on a watch-list by MOM for greater scrutiny and face suspension of work pass privileges for hiring foreign employees.”
Giving birth after starting work
As for employees who give birth soon after joining a company, the Employment Act and the Child Development Co-Savings Act grant a fulltime or part-time female employee paid maternity benefits as long as she has worked for three continuous months for an employer prior to the birth of her baby.
“Employers who fail to comply with the maternity benefit requirements – including its relevant directors and officers – will be liable to a fine and/or imprisonment.”
Therefore, the company handbook or maternity benefit policy should make it clear that female employees are eligible for paid maternity benefits once they have worked for at least three months prior to the delivery of their child, she added.
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