The statutory German 'Right to Question' in a Job Interview - an adoptable Model for Australia?

Table of Content

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

Bibliography

Table of Figures

1 Introduction

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.

2 Selection of Personnel

Selection of personnel is one of the most essential tasks of the Human Resources Department of each company. Human capital is the “heart” of each company, which has a major impact on the success of a company. Therefore, the topic of choosing personnel is crucial. As the introductory text mentioned, employees can not be dismissed easily. Thus, the selection procedure has to be conducted in a thoughtful and responsible manner. The following section aims to provide a short overview of the recruitment process. The role of the job interview will also be highlighted.

2.1 The Recruitment Process

The initial start of the recruitment procedure begins with the assessment of the employer’s needs. Technical development as well as executive decisions can have an impact on the requirement of human capital. Therefore, not all positions, which have become vacant, have to be replaced. Moreover, some positions have to be created newly by implementing a new department or introducing a specific project.^[2]

When the need of a position is determined, the next step is to appoint a selection panel, if required or to hand the matter over to

the person in charge. In that stage, a general planning takes place before the actual work starts. The general planning includes a recruitment strategy development, in which all important conceptual questions will be determined beforehand. This includes to decide the question in which form to recruit the job candidates (e.g. advertising, employment agencies, special event recruiting, etc.), where, how, who and when to recruit.^[3]

After that step, the actual job description can be drafted (or reviewed). Herein, the employer states clearly the employee’s requirements in relation to the vacant job. Firstly, this includes an information on the position, indicating the title, the location, the supervisory responsibility, the accountability and maybe the position in the structure of the organisation. Moreover, the employer makes a statement on the skills, which can be divided into two groups: essential and desirable skills. Job descriptions can be easily drift into discriminatory, unequal conduct. Therefore, the language should be chosen carefully and appropriately. Moreover, the question of certain qualifications or skills raise the issue of genuine occupational requirements. Thus, the necessity should be proven in advance to be able to justify the requirement for the performance of the particular position. These requirements also apply to selection criteria, which the employer may draft. Therefore, the topic will not be discussed any further.^[4]

The next step is to advertise the job description. Here exist several forms to choose, how to distribute^[5] the information. Discriminatory advertising constitutes an offence in itself even if no person is

actually affected by the discriminatory conduct.^[6] Therefore, the advertisement should be checked with respect to wording and the necessity of the asked requirements.^[7] As required under section 127 of the Anti-Discrimination Act 1991 (QLD), a statement of the employer to be an equal opportunity employer is necessary. In Germany, one particular requirement by law is the in-house advertisement of a vacant position within a reasonable time. If nobody applies for that job within the company, the position can be externally advertised.^[8]

After having advertised the vacant position, the interested candidate is asked to send in an application form. In order to avoid any unlawful discrimination,^[9] the application form should only request questions which are necessary for the job. Herein, the applicant is requested to give information on the name and title, the address and contact number, the educational qualifications, other qualifications, special skills, training, previous employment and other relevant experience and referees^[10]. Any other information are voluntarily.^[11] The question of lawful and unlawful

questions will be discussed in the next section and will be therefore left here.

Having received the application forms, the employer will pre-select (e.g. by short-listing) the candidates and will invite potential candidates, which fulfil the requirements of the job description. The procedure and role of the job interview will be introduced under 2.2.

After the interview, the employer will make a decision, whom to hire and will advise unsuccessful applicants that they have not been chosen for the position. It is advisable to give this notice in writing and provide the candidate and offer of feedback to tell them the reasons for the lack of their success. The feedback should also be conducted carefully and only focus on selection criteria and performance criteria in order to avoid discrimination.^[12]

2.2 Job Interview

Even though a lot of different forms of selection methods exist, like assessment centres or aptitude tests, the job interview is still the most favoured approach.^[13] It can be performed in different ways, such as a patterned, unpatterned, panel, stress or group interview.^[14] Generally, the interview is a face-to-face communication between the employer and the applicant (two-way flow; exchange of information), where the interviewer’s conduct of

the interview influence and correspondent to the behaviour of the candidate.^[15]

The job interview aims to give a holistic view of the applicant’s skills, knowledge, appearance and behaviour. Therefore, the employer will ask questions to gain that information and to testify the information given on the application form. The questions being asked should be open questions, which means that the candidate does not only answer with “yes” or “no” to the question.

Referring to the topic of the paper, asking the “right” questions is quite difficult. In the following chapter, the different types of lawful and unlawful questions will be discussed and explained.

3 Legal Basis of Selection of Personnel in Germany

The process of selecting personnel in Germany touches upon several different areas of German laws. These laws try to protect the applicant from the invasion of personal rights in general and in the particular work relationship. These diverse legal areas will be illustrated in the following chapter.

3.1 German Constitution

The German Constitution, the Basic Law, Grundgesetz (GG), builds the legal basis of the German legal system. Articles 1 and 2 GG are of special relevance for the “right to question” and will therefore be illustrated in the following table taken from Tschentscher^[16]:

illustration not visible in this excerpt

Article 1 (1) Sentence 1 GG assures the indefeasibility of the dignity of each individual. According to Article 1 in connection with Article 2 GG, every individual has the right of informational self-determination. This means that each individual German citizen can determine the amount and the content of personal information given to a third person or to the public.

Moreover, Article 12 GG provides the right to choose any kind of occupation and place of work. This right also affects the “right to question” because it protects the personal rights of all employees, which the employer has to respect and to bear in mind when he interviews the candidate. According to Tschentscher, the translation for Article 12 GG is:^[18]

[...]

^[1] Fragerecht

^[2] Compton, R./Nankervis, A., Effective Recruitment & Selection Practices, p. 54-58.

^[3] Breaugh, J., Recruitment: Science and Practice, p. 34-48.

^[4] Compton, R./Nankervis, A., Effective Recruitment & Selection Practices, p. 114-116.

^[5] Radio, television, agent, newspaper, magazine, internet etc.

^[6] section 127 Anti-Discrimination Act 1991 (QLD).

^[7] In Germany, the neutral job title is a major requirement under § 611 b BGB (Bürgerliches Gesetzbuch; German Civil Code), unless the position requires a certain sex, e.g. male stripper for gay bar.

^[8] can be enforced by the Works Council under § 93 BetrVG.

^[9] as required under section 124 of the Anti-Discriminations Act 1991 (QLD). In Germany, the application forms give a broader overview on details, such as marital status or date of birth for instance. This is not regarded as unlawful. Moreover, it is common practice to add a picture to the application and to start with the first step of education. Furthermore, German applications are required to give a holistic information and covers therefore the whole life time, even if it includes non-working periods. The description given in the text does therefore only apply to the Australian system.

^[10] uncommon in Germany. In Germany, the applicant would add a reference from the previous employer.

^[11] Compton, R./Nankervis, A., Effective Recruitment & Selection Practices, p. 58-59.

^[12] Compton, R./Nankervis, A., Effective Recruitment & Selection Practices, p. 210-214.

^[13] comment of the author: The approach of interviewing the candidate is critical, because it creates problems in terms of reliability, validity and neutrality. Therefore, Dresdner Bank AG has developed a directive interview form to ensure a higher potential of neutral judgement.

^[14] Compton, R./Nankervis, A., Effective Recruitment & Selection Practices, p. 174.

^[15] Gatewood, R./Feild, H., Human Resource Selection, p.521 and 535.

^[16] Tschentscher, A., The Basic Law (Grundgesetz): The Constitution of the Federal Republic of Germany (May 23rd, 1949), p. 18.

^[17] "The Word "executive" replaced "administration" since the 7th Amendment (19.3.56).", footnote 11, p. 18.

^[18] Ibid, p.22.