Anti-discrimination requirements for recruiters in Singapore

From October 1, the Ministry of Manpower will enforce stricter conditions to prevent biased hiring

BY Karen Mitra and Dawn Tan 23 Sep 2020

The Singapore economy has been severely affected by the COVID-19 pandemic, resulting in increasing levels of retrenchments and overall unemployment.

With a large number of job seekers in the market, the Singapore government has announced stricter licence conditions for employment agencies starting from October 1, 2020.

These licence conditions require agencies to comply with Singapore's anti-discrimination framework and are intended to build on recent amendments to the Fair Consideration Framework (FCF) in advancing the policy objective of maintaining a strong Singapore core in the workforce.

Singapore's anti-discrimination framework
While Singapore does not have a framework of dedicated anti-discrimination legislation, this area of employment is nonetheless subject to regulation, primarily in the form of the Tripartite Guidelines on Fair Employment Practices (Fair Employment Guidelines).

The Fair Employment Guidelines apply to employment practices such as recruitment and hiring, performance management, and dismissals.

In the recruitment and hiring context, the Employment Guidelines require employers to recruit and select employees on the basis of merit and to not apply any discriminatory criteria.

According to the Tripartite Guidelines, such discriminatory criteria are age, gender, race, religion, language, nationality (particularly if a preference for non-Singaporeans is shown), marital status and family responsibilities.

As with other guidelines and advisories issued by the Tripartite Partners, the Ministry of Manpower (MOM) monitors compliance with the Fair Employment Guidelines and may take enforcement action if necessary in the event of non-compliance.

As part of compliance with the FCF, employers are required to comply with the Fair Employment Guidelines, and particularly to give due consideration to Singaporean candidates for their job openings.

Conditions on employment agencies
Commonly known as “recruitment agencies” or “recruitment firms”, employment agencies essentially seek to place job seekers with employers.

Noting that agencies handle a large portion of recruitment on behalf of employers, the MOM proposes to introduce new licence conditions to make clear the obligations of agencies to uphold fair hiring.

From October 1, 2020, agencies, as part of their licence conditions, must:

Comply with the Fair Employment Guidelines when recruiting on behalf of their clients by clearly stating the selection criteria (which should be fair and objective) in every job advertisement and not using any discriminatory language in the advertisement. Agencies must also shortlist and refer applicants based solely on merit and not discriminate against any applicant on a ground which is irrelevant to the requirements of the role.

Brief their clients (both existing and new) of the relevant requirements set out in the Fair Employment Guidelines at least once and retain documentary proof of such briefing. Agencies are also required to brief their clients on any subsequent changes to the Fair Employment Guidelines.

Make reasonable efforts to attract Singapore candidates for vacancies, unless otherwise instructed in writing by the employer.

There will also be other licence conditions on agencies regarding disclosure of personal information, reporting of discriminatory practices, and retention of documents.

Agencies who do not comply with the licence conditions may face enforcement action from the MOM in the form of demerit points, suspension or revocation of their licence. Serious breaches may even result in criminal prosecution.

Impact on employers who engage employment agencies
Once the stricter licence conditions take effect, it will be clear that the Fair Employment Guidelines will apply to the same extent to recruitment done through an agency as it does to that done in-house.

Employers must therefore ensure that its outsourced recruitment processes are robust and implement the appropriate safeguards from a risk and compliance perspective.

As a matter of best practice, employers should carefully document all communications with the agency engaged by them regarding their requirements for the job and their consideration of any applicants put forward by the agency.

At the same time, employers should continue to document their in-house recruitment processes.

This particularly applies where the employer intends to implement a legitimate recruitment practice which may nonetheless give rise to misunderstanding, such as directing an agency to search only for foreign candidates because the employer intends to utilise its internal resources to search for local candidates.

Conclusion
Employers and agencies should note the upcoming changes to the licensing regime and take it as a further example of the Singapore government's ongoing commitment to Singaporeans in the workforce.

Karen Mitra is a senior associate at Ashurst. Dawn Tan is the founding director at ADTLaw.

© Ashurst 2020. Reproduced with permission.
This article was first published in Ashurst’s Employment Update dated 3 July 2020.

This publication is co-written by ADTLaw LLC and Ashurst LLP who together form Ashurst ADTLaw in Singapore. Ashurst LLP is licensed to operate as a foreign law practice in Singapore. Where advice on Singapore law is required, we will refer the matter to and work with licensed Singapore law practices where necessary. The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying it to specific issues or transactions.