In the past three decades a rapid growth of internationalisation and
globalisation has taken place in the business world. This development
has had a significant effect on the labour market. Nowadays,
recruitment, application and selection of personnel takes place in a
global market. Consequently, Human Resources Management requires
a cross-cultural assessment for hiring international employees. This
also includes the different legal systems, which provide diverse rights
and duties. Furthermore, human capital is regarded as a sensitive
topic. Here, the gap between cost-consciousness and efficiency of
conducting business might stand against the protective and supportive
rights of the employee. Therefore, the selection of personnel plays a
crucial role because employees can not be easily dismissed.
One of the elementary steps within the application process is the job
interview. At this stage, the employer aims to get a holistic image of
his future employee by asking questions. However, not all questions
have to be answered by the applicant truthfully. Thus, the future
employer might be not able to gain a realistic picture of the candidate.
Some legal systems, such as under the German law, provide the
candidate with an implied “right to lie” which has no effect on the legal
validity of a contract. Basically, three different question types exist: 1.
questions with a duty of disclosure, 2. lawful questions and 3. unlawful
questions.
This paper is primarily designed as a tool for applicants and Human
Resources Managers from Germany and Australia, to familiarise them
with the particular rights, duties and consequences of the “right to
question” in a job interview, with a focus on the German legal system.
In the first section , the paper focuses on the general topic of personnel
selection with a particular focus on the recruitment process and the role of the job interview as a part of this procedure. The statutory
German “right to question”1 in a job interview will also be illustrated in
the first section. The adaptability of the German model to the
Australian legal system will then be examined; the outcome of which
form the substantive conclusions provided in the final section.
Table of Contents
1 Introduction
2 Selection of Personnel
2.1 The Recruitment Process
2.2 Job Interview
3 Legal Basis of Selection of Personnel in Germany
3.1 German Constitution
3.2 Entitlements and Duties
3.2.1 Legal Relationship between the Parties
3.2.2 Employers Perspective
3.2.3 Employees Perspective
3.3 Legal Consequences of Default
3.3.1 General Effects
3.3.2 Specific Effects
3.4 Works Council Constitution Act
4 Adaptation to Australia
4.1 Overview of Australian Legal Environment
4.2 Examination
5 Conclusion
Research Objectives and Topics
This paper aims to examine the statutory German "right to question" in job interviews and evaluate its potential as an adoptable model for the Australian legal system. It specifically explores how German labor laws balance employer interests with the protection of the applicant's personal sphere.
- The statutory framework of the "right to question" in Germany.
- Distinction between lawful and unlawful interview questions.
- Legal consequences of disclosure duties and potential misrepresentations.
- Comparative analysis of the Australian anti-discrimination legal landscape.
Excerpt from the Book
3.3.1 General Effects
In case of any unlawfully asked question by the employer, the employee has two options as to how to react. Either the candidate can remain silent and refrain from answering the question. The problem, which was found by using that right, was that the employee was disadvantaging himself by giving the impression of hiding something. Therefore, the law provided the applicant with an implied “right to lie”. Consequently, the candidate can give knowingly wrong answers, without fearing any legal consequences.33
According to the judgements of the German Labour Courts, the protection of the personal right of the applicant by the German Basic Law is more important than the employers interest in the deceit of the employer and the resultant damages. Therefore, any later performed contract is not voidable under § 123 (1) BGB for wilful deceit caused by wrongfully answered questions.34
Moreover, the applicant is entitled to claim damages under the principle of “culpa in contrahendo” § 311 (1) BGB. Under that principle, the candidate has to be compensated, as if he had not gone to the job interview (negative interest). Therefore, the employee recovers damages for transportation costs, non-productive work etc.35
Summary of Chapters
1 Introduction: Provides an overview of the global labor market shifts and introduces the concept of the "right to question" within German and Australian employment law.
2 Selection of Personnel: Describes the standard recruitment procedure, emphasizing the importance of job interviews and the employer's need to assess candidates responsibly.
3 Legal Basis of Selection of Personnel in Germany: Explains the constitutional and civil law foundations in Germany, including duties of disclosure and the classification of interview questions.
4 Adaptation to Australia: Examines the Australian anti-discrimination framework and contrasts its approach to the German model regarding interview questions.
5 Conclusion: Synthesizes the findings and suggests that while both systems protect candidates, the German model provides a more explicit framework for handling pre-contractual disclosures.
Keywords
Right to question, Personnel selection, German labor law, Recruitment, Job interview, Anti-Discrimination Act, Right to lie, Employment contract, Human Resources Management, Legal basis, Disclosure duty, Unlawful questions, Workplace safety, Cross-cultural assessment, Labour market.
Frequently Asked Questions
What is the core focus of this research?
The research investigates the German "right to question" in job interviews and assesses whether this statutory model can be effectively adopted within the Australian legal environment.
Which central themes are discussed in this work?
The main themes include the legal relationship between employers and candidates, the classification of lawful versus unlawful questions, the "right to lie" under German law, and the impact of anti-discrimination legislation.
What is the primary goal of the study?
The primary goal is to compare the legal protections afforded to job applicants in Germany and Australia during the recruitment process and to determine if the German statutory model is an adoptable standard.
Which methodology is employed in the paper?
The study utilizes a legal analysis approach, comparing statutes such as the German BGB and the Australian Anti-Discrimination Act (QLD) to evaluate their respective impacts on human resource practices.
What does the main body of the work cover?
The main body covers the recruitment process, the constitutional basis for personal rights in German employment, specific legal consequences of default in answering questions, and a comparative review of Australian law.
Which keywords characterize this paper?
Key terms include "right to question," "personnel selection," "labor law," "recruitment," "disclosure duties," and "anti-discrimination legislation."
How does the "right to lie" function in the German legal system?
The "right to lie" applies when an employer asks an unlawful question that violates the candidate's personal sphere; in such cases, the candidate may provide a false answer without legal repercussions for contract validity.
What distinguishes the Australian approach to interview questions from the German one?
While both systems prohibit discrimination, Australian law focuses primarily on broad anti-discrimination statutes, whereas German law provides a more structured classification of the duty to disclose and the specific "right to lie" in pre-contractual negotiations.
- Quote paper
- Julli Markgraf (Author), 2003, The statutory German 'Right to Question' in a Job Interview - an adoptable Model for Australia?, Munich, GRIN Verlag, https://www.grin.com/document/22519
