Employers may be concerned about gang affiliations when they are looking over candidates applying for position in their business.  Are employers able to ask candidates whether they are in a gang before employing them?

Under the Human Rights Act 1993 it is illegal to discriminate again a potential candidate or employee on the basis of their sex, race, religious belief, age, political opinion and family status. It is unlawful to discriminate on the basis of these grounds, either directly or indirectly.

Being part of a certain group unrelated to one of the grounds is unlikely to give rise to a risk of discrimination under the Human Rights Act. Therefore, it is not illegal to ask if they are in gang, or to use this information in your decision.

However, there is still a risk of discrimination if employers only ask certain potential employees if they are part of a gang. The best way to proceed is to treat all potential candidates or existing employees the same, for instance by asking questions around gang affiliation to all.  This will help to avoid the appearance that the employer is targeting individuals of certain ethnic groups, sex, political opinion or any of the other illegal grounds of discrimination.

If the employer later finds out that the employee is part of a gang, and they lied about not being a gang member, there may be grounds to take disciplinary action.  This could include firing the employee for their dishonesty, but a fair process has to be followed first to put the allegation of dishonesty to the employee and give them an opportunity to respond before reaching any decisions.

If you have queries or concerns about how to hire employees it is wise to speak with a professional experienced in the area. 

To learn more about:

 

Jaenine Badenhorst
Employment Lawyer
Wellington

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