It’s who you know, not what you know – the age-old adage creeps into organizations everywhere but is it actually legal? HRM asked a leading industry lawyer to enlighten us on the contentious employment issue.
“There’s something to understand about nepotism – nepotism is not always a problem,” states Martin Sheard, of Tevlin Gleadle Curtis. “Sometimes, you can hire your family members because you know them so well and you trust them and you can’t think of anyone who would do the job better.”
Of course there are situations when employers hire purely based on personal relationships and Sheard says it’s these occasions that could cause problems for HR.
“Let’s say you had a job competition and you hire your brother but the other candidate comes back and says; ‘Well hang on, the job ad said you need a PhD, he doesn’t have a PhD, the job ad said you needed 10 years’ experience, I have that, he doesn’t’ – all of a sudden it starts to stack up,” says Sheard.
“It’s almost like turning on its head the usual family status type of complaint where the unsuccessful applicant could say; ‘You failed to hire me because I’m not your brother,’” says Sheard.
While Vancouver-based Sheard admits there is space for a claim, he says a win for the dejected candidate would be highly unlikely.
“I think they’d have a lot of difficulty making their case,” he told HRM. “Employers can line up all kinds of evidence – anything from him being rude on the phone to wearing the wrong type of shoes – because hiring can be so subjective sometimes.”
Similarly, if an employer promotes an employee based on personal relationship, the same slight risk is present.
“Again, I think they’d run into that same problem – first of all establishing that they would have gotten the promotion if the brother hadn’t but also establishing what their losses would be. Those might not be easy to measure because you’re into the realm of speculation.”
While HR professionals would undoubtedly discourage irresponsible hires, it seems repercussions for nepotism in the workplaces are relatively minimal.
“Realistically, there is some exposure there from a strict, technical legal standpoint but practically speaking it would be a rare day when that comes back to burn an employer,” says Sheard. “Most of the time it’s just not worth pursuing something like that, even when it happens.”
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