Legal Considerations in Selection for France

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1 Legal Considerations in Selection for France In France, it might easily be thought that legislation is not concerned about recruitment and selection, and with reason, because little attention is paid to that sphere at present. Although principles do exist and some sources of law are applied, we have not yet achieved anything like the Labour Code, for example, which governs and organises relations between companies and their employees. The law does not impose itself between the recruiter and the job applicant and has to be sought out. Often, recourse to the courts to jurisprudence is substituted for legal texts. As a full reading of the law would take time, this part of the document will focus on clarifying the various components of legislation on recruitment. The various legal sources that affect the recruitment process can be identified as follows: The Civil Code The Labour Code The Criminal Code The General Law on Civil Contracts Computer Law European Law Development Dimensions International, Inc., Pittsburgh, Pennsylvania. All rights reserved under U.S., International, and Universal Copyright Conventions. Published in the United States of America, the United Kingdom, Canada, and other countries. Development Dimensions International prohibits the reproduction of any portion of these printed materials in any medium without prior written agreement. These materials may be used only with related printed and video materials. Furthermore, clients are required to provide each viewer of the videos with a complete set of related printed materials for that person s use during and after the training. Such materials are not intended for or authorized for use by others. DDI and Targeted Selection are marks of Development Dimensions International.

2 To obtain a better understanding of the ways in which that legislation is applied, we shall refer to the various stages of the recruitment process and examine the texts relating to them so as to determine: The rights of the interviewer and the applicant. The duties of the interviewer and the applicant. The penalties that can be imposed if the law is not respected. We shall distinguish four stages: 1. The search for applicants. 2. The search for information about the applicants. 3. Choosing the applicant. 4. Retaining information about applicants. 1. The Search for Applicants There are several ways of seeking applicants: Co-option Internal promotion ANPE, APEC, former pupils associations, the unemployed Job offers in the press, on Minitel, the Internet, radio or television Headhunting Employment agencies Exhibitions Pool of applicants At this preliminary stage, several sets of regulations apply to some of the search methods listed above. There are no texts specifically applicable to co-option (using existing relationships), internal promotion, and exhibitions (although the rules on seeking information about applicants and retaining their information do apply). As regards the creation of a pool of applicants by an employment agency, limitations do exist and are discussed in the paragraph on employment agencies. As regards the creation of such a pool by the company itself, the rules on the retention of information about applicants are applicable. Development Dimensions International, Inc.,

3 Obligation to Inform the ANPE A company wishing to fill a vacant post and not using co-option or internal promotion is obliged to inform the Agence Nationale Pour l Emploi [National Employment Agency]. i Failure to fulfill this obligation makes the company liable to a fine of up to ii The obligation to notify does not mean that the company is obliged to accept or favour the applicants offered by the ANPE. Advertising Job Offers It is prohibited to advertise job offers in a poster, except for temporary employment agencies, or by any other means of advertising. iii (It seems that Minitel, the Internet, radio, and television enjoy the monopoly thus granted to the press.) Announcing Job Offers in the Press Job offers can be announced in the press if the following legal framework is followed: iv If the name and address of the recruiting company are not included in the announcement v, they must be reported to the editor of the publication, the ANPE and the DDTE (Direction Départementale du Travail et de l Emploi [Departmental Labour and Employment Administration]). vi It is prohibited to state an upper age limit, unless a legal, regulatory or agreed obligation exists (on pain of a fine of up to ). It is prohibited to produce a text in a foreign language for offers in French territory for a French employer, except in journals most of whose content is in a foreign language. vii It is prohibited to subject the offer to discriminatory conditions viii such as: political opinion, union activity, race, nationality (except for defence), religion, state of health, disability, family situation or sex (with one exception) ix, on pain of penalties under the criminal law (imprisonment for two years and a fine of up to 30,489.85). x It is prohibited to include false or misleading allegations (penalties: a fine of 38,12.27, imprisonment for a year). vii Indications concerning remuneration are binding on the employer. xi Indications concerning the nature of the contract are binding on the employer. xii Development Dimensions International, Inc.,

4 Presentation of Job Offers on Minitel, the Internet, Radio and Television Job offers on Minitel and the Internet enjoy the freedom of audiovisual communications. xiii Logically, the regulations ought to be modeled on those concerning the printed press (see preceding paragraph). Hiring Away This type of search is controlled according to the principles of unfair competition. Jurisprudence has devised rules enabling non-compete clauses to be inserted into employment contracts. Those clauses are limited in time and space and as regards the type of activities concerned. In the case of contravention, the employee can be ordered to cease his or her new activity xiv and the new employer s liability in tort may be incurred if it is proved that it was aware of the clause. xv In that respect, the recruiting company is required to ascertain whether the applicant is bound by a non-compete clause. (See Seeking Information about the Applicant.) In the absence of a non-compete clause, the former employer can take action for unfair competition xvi if it is established that the employee s actions have caused disorganisation or commercial disruption in his or her former company or confusion among its clientele. In certain circumstances, particularly if it is demonstrated that the former company was involved in the hiring away of the employee, the new employer can then be held jointly liable for the loss caused. xvii Recruitment Advisory Agencies It is jurisprudence which mainly constitutes the legal framework governing contractual relations between the company and the recruitment agency; the contract signed between the two parties takes precedence in the case of a dispute. The agency is bound by a best-endeavours obligation, not an absolute obligation. xviii It is the task of the company which is recruiting to provide the mandated agency with the definition of the post to be filled. xix The recruitment agency s sole task is to present applicants, even if they are rejected. The agency s remuneration does not depend on a person s being recruited. xx The recruitment agency s liability is incurred if it has not ascertained the circumstances in which an applicant it has presented left his or her last job. xxi Development Dimensions International, Inc.,

5 The recruitment agency s liability is not incurred if the two parties have not agreed to a time limit xxii or have agreed only to an indicative time limit. xxiii The recruitment agency is not responsible for the possible resignation of the applicant selected through its endeavours. xxiv As regards relations between the applicant and the recruitment agency, the National Commission for Computerisation and Freedoms [CNIL] issued a recommendation on 15th October 1955 specifically applicable to recruitment advisory operations. Strangely enough, that recommendation does not mention recruitment operations in general and particularly relations between the applicant and the company, which are governed by the Labour Code (see the section on Seeking Information about Applicants). Recommendation R (89) of the Council of Europe and Directive 95/46/CE of the European Parliament and the Council of 24th October 1995 apply to relations between the applicant and the recruitment agency (see the section on Seeking Information about Applicants). For recruitment advisory operations, the CNIL s recommendation of 15th October 1985 stipulates: Information on the applicant s private life cannot be collected. The information collected must be strictly necessary for the recruitment envisaged. Information can be collected only from the applicant and from a third party if care is taken to inform the applicant. Press announcements must correspond to a real job. (It is illegal to compile a file based on a fictitious job.) At the applicant s request, the recruitment adviser must return or destroy the documents concerning the applicant. The applicant must be informed beforehand of the purpose of the information, the parties to which it is addressed, the legal context of such flows of information and his or her right of access to it. The applicant can exercise a right to gain access to the information concerning him or her and to correct it. The applicant has the right to know the reasons why his or her application was rejected. Development Dimensions International, Inc.,

6 2. The Search for Information About Applicants In this section we shall be able to examine the coherence of the Targeted Selection system with French legislation. As we shall see, the Targeted Selection system fully complies with the law. We shall endeavour to examine the search for information about applicants from two points of view: the nature of the information collected and the way it is collected. The Nature of the Information to Be Sought The texts place clear restrictions on the information the company is entitled to seek from an applicant. The general principles of people s rights to individual freedoms stipulate that no one can place restrictions on them that are not motivated by the nature of the task to be accomplished or that are disproportionate to the aim being pursued. xxv That general principle has implications for the way in which the information is sought and the choice, as we shall see further on. As regards the nature of the information sought, its exclusive purpose is to assess the person s capacity to occupy the job being offered. It must, therefore, be directly and necessarily linked to the job. xxvi Compliance with the principle of non-discrimination xxvii specifies certain spheres in which it is illegal to ask questions. Jurisprudence reinforces those principles and goes beyond article 9 of the Civil Code everyone is entitled to have his private life respected by affirming that private life and working life are kept separate. When seeking information about applicants, it is therefore wise to ask only for information related to the job to be filled. Targeted Selection was certainly devised in that spirit. However, if you obtain the applicant s agreement (preferably in writing), you can, of course, ask questions about his/her private life. Whether obtaining the information is legal or not, applicants cannot conceal certain details because they are visible, for example, sex, skin colour, etc. Conversely, at a Targeted Selection interview, the interviewer should avoid seeking information and asking questions about the person s private life if its effect on performance in the job cannot be proved, and particularly about the following: Age viii Race viii Customs viii Union membership viii Development Dimensions International, Inc.,

7 Political opinions viii Religion viii or membership of a religious community xxvii viii and xxviii Pregnancy Criminal record xxix (except for banks, xxx childcare entities xxxi and VRPs) xxxii Military service situation or the reason for an exemption xxxiii (except the possibility of asking whether the applicant is free of military obligations) viii and xxxiv Family situation, the spouse s profession or the applicant s family future The applicant s financial situation xxxv School records (diplomas can be requested) viii and xxxvi State of health, disability Nationality viii and xxxvii (except for the national defence sector) Documents can be requested and questions asked concerning: The driving licence (if one is necessary for doing the job on offer). xxxviii School certificates and diplomas. Work certificates. Extract Nº 3 from the police record for banks xxx, childcare entities xxxi and VRPs xxxii. Work and residence permits, etc. The company which is recruiting staff has the duty of checking that the applicant is not bound by a non-compete clause or is not at present in a job. It must make all the arrangements necessary to obtain information on the applicant s professional skills (it cannot plead error concerning the person if information on his professional history comes to its knowledge after that person has been recruited). xxxix The Way in Which Information Is Sought The Obligation to Inform the Applicant xl The company recruiting staff must provide the candidate it is investigating with the information listed below, unless that applicant already has it: The identity of the person in charge of processing the information (e.g., human resources department, human resources director) or its representative. The purposes for which the information collected will be used. The people who will know the information. Development Dimensions International, Inc.,

8 Whether it is compulsory or optional to answer the questions and any possible consequences of not answering them. The existence of a right to gain access to the information about him or her and to correct it. The recruitment methods and techniques used concerning him or her. Obtaining the Applicant s Agreement to the Assessment Methods and the Use of the Results The law is not concerned with regulating the methods used to assess applicants. However, according to article 9 of the Civil Code everyone is entitled to respect for his private life, and the legislator might question the legitimacy of certain assessment methods which concern personality. Does information about someone s personality concern their private life or their working life? In the case of doubt, it is wise to obtain the applicant s agreement to the assessment methods and how the results obtained concerning him or her will be used. 3. Choosing the Applicant The prohibition is established to give grounds for a refusal to recruit according to the following criteria: viii Political opinion, union activity, xli race, nationality (except for defence), religion, state of health, disability, family situation, customs, sex (apart from one exception) ix, on pain of a penalty under the criminal law (two years imprisonment and a fine of up to 30,489.85). x The applicant s attitude having suffered, witnessed or reported sexual harassment xlii, on pain of penalties under the criminal law (one year s imprisonment and a fine of up to 3,811.23). xliii Pregnancy, on pain of penalties (a fine of up to 3,048.99). xliv Refusals to recruit based on unsuitability certified by a company physician cannot be considered discriminatory. Regarding the reason for rejection, article L.121 of the Labour Code subjects employment contracts to common law. The implication is paradoxical compared with the CNIL s regulations on recruitment advisory activities: the choice is at the discretion of the company which is not obliged to provide reasons for its refusal to accept the employment contract. Development Dimensions International, Inc.,

9 4. Retaining Information About Applicants The information about an applicant can be kept provided that the applicant agrees. The Law of 6th January 1978 on computerisation and freedoms does not confine itself to computer files but applies to paper files as well. If personal or named information is kept, it must not infringe human identity, human rights, private life or individual or public freedoms. The European Convention of 28th January 1981 and Directive 95/46/EC of the European Parliament and the Council of 24th October 1995 express themselves in similar terms. Rules are imposed on the person in charge of processing and keeping information in the company: The collection of information by fraudulent, unfair or illicit means is prohibited (constitution of a pool of applicants through an offer in the press that does not correspond to a job). The person in charge of processing must check the accuracy of the information. The information collected must be useful for the proposed purpose. The person in charge of processing must indicate how long the information will be kept for, that period having to be motivated by the purpose for which it will be used. The person in charge of processing must guarantee the security and confidentiality of the information (not passing information to unauthorised third parties). The conservation of sensitive information (discriminatory information) is conditional on the applicants agreement. Moreover, the company which is recruiting has a duty to inform the applicants (see The Obligation to Inform the Applicant.). i ii iii iv v vi vii Labour Code, article R Criminal Code, article ff. Labour Code, article D Partly: Labour Code, article Note: The anonymity of the company in the context of a job offer is contrary to article 27 of the Law of 6 th January 1978 on computerisation and freedoms. Article of the Labour Code permits the applicant to know the name of the recruiting company. Labour Code, article D.311-1, sub-paragraph 4. Labour Code, article L to L and L Development Dimensions International, Inc.,

10 viii ix x xi xii xiii xiv xv xvi xvii xviii xix xx xxi xxii xxiii xxiv xxv xxvi xxvii xxviii xxix xxx xxxi xxxii xxxiii xxxiv xxxv xxxvi xxxvii xxxviii xxxix xl xli xlii xliii xliv Labour Code, article L / ILO Agreement Nº 111 (1958) / Recommendation R (89) of the Council of Ministers of the Member States of the European Union 10/1 / article 31 of Law Nº of 6 th January Labour Code, article L / Decree of 25 th March Criminal Code, articles to Social Court of Cassation, 17 th November Appeal Court of Nîmes, 22 nd October Law of 1 st April th September Social Court of Cassation, 15 th February 1995 and 10 th December Commercial Court of Cassation, 15 th November 1994 and Social Court of Cassation, 21 st March 1995) Labour Code, article L Labour Code, article L Appeal Court of Paris, 22 nd February 1989 and 3 rd June Appeal Court of Paris, 2 nd December 1986 and 21 st March Appeal Court of Paris, 17 th February Appeal Court of Paris, 30 th November Appeal Court of Paris, 27 th September Appeal Court of Paris, 16 th May Appeal Court of Versailles, 25 th March Labour Code, article L Labour Code, article L Social Court of Cassation, Judgement of 17 th October 1973: the Court of Cassation considered it had been wrong to dismiss an employee who had not indicated during his recruitment that he was a priest. Labour Law, article L , sub-paragraph 1: prohibition on seeking information about pregnancy./ sub-paragraph 2: the applicant is not obliged to disclose whether she is pregnant. Social Court of Cassation, judgement of 25 th April National Collective Banking Agreement. Law of 6 th July 1983, article 6. Article D Judgement of 23 rd April Judgement of 17 th March Judgement of 29 th May Law of 12 th July Judgement of 14 th October Appeal Court of Bourges, 31 st May Court of Cassation, judgement of 3 rd July Directive 95/46 EC of the European Parliament and the Council of 24 th October 1995 on the protection of natural persons concerning the processing of personal information and the free circulation of that information / Law Nº of 6 th January on computerisation, files and freedoms. Labour Code, article L Labour Code, articles L , L and L Labour Code, articles L and R Criminal Code, articles ff. Development Dimensions International, Inc.,

Introduction. There are two primary schools of thought in developing an audit approach:

Introduction. There are two primary schools of thought in developing an audit approach: Introduction There are two primary schools of thought in developing an audit approach: One viewpoint is to assume that everyone is looking for ways to beat the system ; therefore, the auditors devise audit