A Research on the Legal Issues Related to Employment Tests

Abstract

With the advance of science and technology, different types of tests are widely applied to the selection procedure by the employers, relevant issues become more and more prevalent. To clarify the legal issues about the usage of tests in the workplace, this article will introduce the practice of the laws respectively in the US, the UK, and Taiwan, analysing the similarities and differences among them, and come up with the proper way to deal with the issues regarding tests. As we all know, human resources are the most important asset of the enterprise. To make sure the job applicants or the employees have sufficient competence to complete the tasks and are able to make the most profits for enterprises, a large number of employers would implement the tests to find out the characteristics, health condition and competence of them so that the best employment decisions can be made. There is nothing to be blamed that the employers pursue the best profits, whilst in the selection process the employers probably discover the innate and unchangeable defects of the applicants or the employees, and take further adverse action against them, which can lead to a chain of issues concerning employment discrimination and privacy. In the US, the implementation of employment tests doesn’t necessarily constitute discrimination even if the employer obtain the personal information of the applicants or the employees through tests. Under the anti-discrimination laws, the action of the employers will not be able to be seen as employment discrimination unless the applicants or the employees suffer adverse treatment after taking the tests. The American with Disability Act, in substance, has its name of anti-discrimination law, also has the function of indirectly protecting workplace privacy. Even though the employers are allowed to conduct the employment tests, they cannot take any adverse action against the employees, except for the special conditions set by the law. In contrast, relevant laws in the UK focus on protecting personal privacy, which means tests done by employers will be treated as the privacy issues. Once the employer collect information from the applicants or the employees without following the requirements of relevant laws, he or she might constitute infringement of the workplace privacy. The Data Protection Act and the Employment Practice Code put the limitation on employers’ rights to gather those information they need from the applicants or the employees, especially information which can be categorized as what is so-called “sensitive data”. Upon collecting, processing or using the personal information of employees through the tests, the employers are asked to make sure they meet one or more requirements before performing the tests. Also, the sensitive data can be obtained only if the employers meet at least one special requirement, which has the stricter limitation. On top of that, the eight principles regulated in the Data Protection Act play an important role in workplace privacy protection. The employers who would like to gather information of the employees must follow all the principles. Even employers who can legally implement the tests to acquire the information from the applicants or the employees, also need to ensure the information being processed properly and have no adverse effects on the applicants or the employees. In Taiwan, tests in the workplace would be regarded as the privacy issues in principle. Currently, Article 5(2) of Employment Service Act and the Article 1-1 of the Enforcement Rules of Employment Service Act are the mainly relevant laws which regulate employment tests. Also, the Personal Information Protection Act in Taiwan covers the issues about collecting, processing and using the personal information. Furthermore, there are also some laws set from the perspective of anti-discrimination, which are beneficial to the establishment of the laws concerning employment tests in Taiwan. After further analysis of different legal systems in the US, the UK and Taiwan, it’s clear to discover the issued treated in different way in different legal systems. As the employment tests are used widely and frequently, the concern for the issues arise, the article suggests that the dual system avoiding employment discrimination and protecting the workplace privacy should be established without overlap. Also, the laws must be flexible, adjustable and in line with the social development.