Discriminatory Hiring: Penalties Against Employers in Singapore

The people we work with play an integral role in the way our business is managed. This makes our choice of employees a crucial one. However, this must not lead to you engaging in discriminatory practices during the recruitment process.

This article will explain what discriminatory hiring is and the penalties employers may face for engaging in discriminatory hiring practices in Singapore.

What is Discriminatory Hiring?

Discriminatory hiring refers to the recruitment of employees based on criteria other than their ability to perform the job. This would include age, race, gender, religion, nationality or marital status.

As an employer, you should note that discriminatory practices can happen at any point during the recruitment process. For example:

• When advertising the job vacancy: An advertisement stating a “Chinese-speaking environment” can be considered discriminatory.
• During the job application: A job application form requiring information on the candidate’s age may be discriminatory.
• At the interview: Asking a candidate whether she intends to have a child during an interview can be discriminatory.

Is discriminatory hiring considered workplace discrimination?

Discriminatory hiring is one aspect of workplace discrimination. Workplace discrimination also encompasses other areas such as matters of salary, promotion, training and posting.

Singapore recognises all these different aspects of workplace discrimination in its Fair Consideration Framework (FCF).

The FCF was introduced in 2014 and requires employers to consider all job applicants fairly. It encourages employers to adopt a merit-based approach to recruitment, salary, promotion, training and posting.

The FCF was updated in 2020 to impose stiffer penalties on employers who engage in discriminatory hiring practices.

How does MOM Identify Employers Who Have Engaged in Discriminatory Hiring Practices? 

The Ministry of Manpower (MOM) administers the FCF with the help of the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP). MOM has a few ways to identify employers that have engaged in discriminatory hiring practices. These include:

• Complaints from the public: A job applicant can file a complaint with TAFEP. Upon receiving a complaint, TAFEP will contact the employer and encourage them to adopt fairer employment practices. If the errant employer fails to do so or ignores TAFEP, the case would then be referred to MOM.

• Data analytics: MOM will compare the employment data of a particular company with industry peers. Data which is then identified as significantly different from industry peers, pointing at discriminatory hiring,  will be flagged. For example, hiring more foreigners than their peers could indicate that such employers have not considered locals fairly for the job, proving discriminatory hiring.

What are the Penalties for Discriminatory Hiring?

MOM takes a strong stance against discriminatory hiring practices and will investigate any allegations. If the allegations are true, MOM can take action against them.

Placing errant employers on an FCF Watchlist 

As its first course of action, MOM will proactively place employers who have received complaints of discriminatory practices or whose hiring practices differ from their peers on the FCF Watchlist. Employers placed on the FCF Watchlist have up to 6 months to improve their human resource practices. Those that have shown improvement will be removed from the Watchlist. Otherwise, MOM may take further action against them (see below).

Preventing new work pass applications and renewals 

Following what was mentioned above, MOM can then prevent errant employers from applying for work passes for new employees and work pass renewals for existing ones as a further cause of action, if needed. The debarment period can last from 12 months to 24 months, depending on the severity of the case. The 24-month debarment period is typically reserved for the most serious cases.

Charging an errant employer under the Employment of Foreign Manpower Act (EFMA) 

Employers are required to declare in the work pass applications of foreign employees that they had considered local candidates for the job. If an employer makes this declaration without actually fairly considering local candidates, it may be charged with making a false statement under the EFMA. This offence carries a maximum fine of S$20,000 and/or a jail term of up to 2 years.

In January 2020, logistics company Ti2 Logistics was charged with making a false statement in a work pass application under the updated FCF. This was after it had declared that it had considered locals for a business development position when it had not.

What are Some Fair Hiring Practices Employers Must Follow in Singapore?  

The FCF covers fair hiring practices for the 3 aspects of recruitment mentioned earlier:

1. Job advertisements
2. Job applications
3. Job interviews

Job advertisements

Employers intending to submit an Employment Pass application must first advertise the vacancy at the MyCareersFuture.sg jobs portal maintained by Workforce Singapore. MyCareersFuture.sg helps match employers with local job seekers. This allows locals to be considered fairly for these vacancies.

However, this requirement is waived if:

• An employer with less than 10 employees;
• The vacancy has a salary of S$15,000 or higher;
• The vacancy is not more than 1 month; or
• The vacancy is to be filled by a transferee from within the same corporation.

Employers who advertise on MyCareersFuture.sg must keep the advertisement up for at least 14 days. If there are any changes made to the advertisements during this period, the advertisement must remain on MyCareersFuture.sg for another 14 days from the date of the latest change to the advertisement.

Further, the selection criteria in the advertisement must relate to the qualification, skills, knowledge or experience of the candidate. Advertisements that contain age, gender, race, religion, nationality, or marital status requirements should be avoided.

However, certain jobs may have specific gender, religious or language requirements. For example, a female model for women’s clothes, a Hindu priest to perform Hindu rites, or a language teacher. In such cases, the reasons for that criteria must be clearly stated to avoid any perception of discrimination.

Job application forms

Job application forms should not require applicants to provide information that is not relevant to the job. This may include information on the applicant’s age, gender, race, religion, marital status, disability, national service liability or mental health, or requests for the applicant’s photograph.

The only information required to assess the applicant’s suitability, such as skills, experience, or qualifications, should be asked. This ensures that applicants are assessed only on their merits.

Job interview/tests

Similarly, a fair job interview focuses on merit-based and non-discriminatory questions. Employers should only ask questions relevant to the job. If there is a need to ask a question that can be considered discriminatory, the employer should explain the reasons for those questions to the candidate.

If there are tests incorporated into the interview process, the test questions should be related to the job. Further, the questions should be reviewed regularly to make sure that they remain relevant.

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The FCF does not only protect employees from discrimination. Adopting its principles will also put employers in good stead. It will widen the pool of candidates available and increase the chance of finding the ideal fit for the position.

Also, it will help to retain valued employees that can help grow your business. However, it is still possible for an employer to engage in discriminatory hiring practices without knowing it.

If you are an employer wondering whether your advertisement is discriminatory, or one that has been charged under the EFMA and unsure what to do next, do not hesitate to consult one of our employment disputes lawyers for help.