This week’s blog is our Ask The Expert article from our Summer edition of PeopleTalk.
One of our client’s staff members has applied for a job here. Where do we stand legally if we let our client know we have received an application?
Whilst it may seem completely legitimate to notify your customer that one of their employees has applied for a job with you, there are various legal implications which should be considered:
- Do you have terms of business with the client which prevent you from employing their staff directly?
- Does the applicant’s contract of employment prevent them working for their suppliers, customers or clients during their employment or for a period of time after their employment ends?
- Has the applicant consented to this information being presented to their employer and if not, will it cause them a detriment if it were? Especially if they don’t get the job with you.
You may feel you have a moral or ethical obligation to notify your client that a member of their staff has applied to your company for a position.
Perhaps you wish to preserve the relationship with the client with a view to seeking their approval to interview them beforehand.
Unless there is something specifically in the terms of business with your client, requiring you to notify them (which is unlikely), there is no legal requirement to tell them that this application has come your way. If after interview, you feel that the applicant’s skill set meets what you are looking for and you wish to offer that person a position, then it is recommended that you obtain a reference and it could then become a little awkward that the reference you are requiring relates to one of their employees.
If you are to obtain a reference on an applicant, consideration should be given to data protection laws, including those outlined in the new General Data Protection Regulation, which recommend that you should seek an employee’s express consent before obtaining a reference on them.
This may already have been acquired, assuming that you have issued a privacy statement to all your applicants, which is more common place now.
Regardless of the above, whichever way you look at it, there are confidentiality issues and data protection principles always need to be considered. The applicant will no doubt, not have wanted you to tell their employer that one of their employees is looking to leave their employment, unless they are offered the job and had accepted it. In an ideal world, consent should be obtained first. Check to see if any paperwork exists, detailing any restrictions which are in place preventing an applicant employed by your client from working for you and then weigh up the duty of care owed to the applicant to keep that application confidential versus any duty of care or contractual obligation you may owe your client.
Our Ask The Expert articles are written by our HR Operations Manager, Fiona Mendel. Fiona is a qualified employment solicitor and heads up our team of HR advisors.
Our Ask The Expert articles first appear in our quarterly newsletter PeopleTalk