6 February 2013
What are the legal consequences if I ask a job applicant questions about one of the protected attributes?
If you ask questions about a protected attribute (see Bitesize, 30 January 2013) then this may result in a claim by an unsuccessful job applicant who could argue that you were unlawfully discriminating against him/her by employing another applicant without those protected attributes.
However, PRC law is silent on the consequences of a breach of the discrimination provisions. Based on recently reported discrimination cases (e.g., those raised by unsuccessful job applicants who are carriers of Hepatitis B, or who claim gender discrimination), an employer who has discriminated against a job applicant with one of the protected attributes could be ordered to employ the applicant; or to compensate the applicant for economic losses and mental injury.
What should I ask the job applicant?
You should only ask for information which directly relates to the employment contract to be entered into with the job applicant. Be prepared to justify any question having regard to its relevance to the job in question. So, an applicant's sexual orientation, family status and even, in some cases, criminal record may be irrelevant to this job and, therefore, should be avoided.
Can I conduct a background check on a job applicant in the PRC?
Yes you can. There are no legal restrictions on the ability of an employer or any third party acting on behalf of an employer to conduct background checks on job applicants in the PRC.
However, in practice, there may be some difficulty in obtaining information about an individual from certain information providers. The written authorisation of the relevant individual will usually be required, and even then there may still be contractual commitments or internal policies which may restrict the provision of information.
Must I obtain the consent of job applicants prior to carrying out the background checks?
No, there is no legal requirement under the PRC law to obtain an individual's consent before carrying out a background check. However, aside from the fact that some organisations do require consent of the individual before releasing information, it would be good practice to obtain the relevant individual's written consent before any background check is conducted in respect of him/her.
Can I ask for information such as credit history as part of the background checks?
Again, there are no restrictions on the types of the background checks that may be conducted under the PRC law.
In practice, you can decide what information you need to have based on the nature of the relevant role. In addition to the employment history, other types of background check information an employer may also ask for include the individual's credit history, criminal record, directorship status and any involvement in civil litigation.
It is important that as an employer you ensure that your own staff and any third party acting as your agent do not use any personal relationship or other unlawful means to obtain information in case this exposes you to potential liabilities. This should be reflected in any contractual arrangement with the third party who conducts the background checks.