Legal limits on the employer's freedom of choice in recruiting and selecting employees

Abstract

Under common law an employer enjoyed complete freedom of choice when recruiting and selecting employees. An employer had unfettered discretion in recruiting and selecting employees. There were no legal restrictions on the prerogative of the employer to appoint employees. Developments in labour law have, however, gradually diminished the employer's freedom of choice during the recruitment and selection process. The Employment Equity Act No. 55 of 1998 and the Code of Good Practice on the Integration of Employment equity into Human Resource Policies and Practices, 2005 as· well as impending labour legislation impose limitations on the employer's freedom of choice during the recruitment and selection process. The remaining problem therefore is: What is the extent of the limitations on the employer's freedom of choice in the recruitment and selection of employees? The study will be conducted by means of a literature study of relevant books, journal articles, statutes, case law and internet sources relating to restrictions which are placed by legislation and case law on the employer's freedom to choose employees during recruitment and selection. This research therefore investigates the extent to which developments in labour law have eroded the prerogative of an employer to appoint employees. This investigation will help clarify the limits within which an employer has to exercise its choice of an employee during recruitment and selection.