How much can an employer investigate a job applicant?

Interview questions are designed to help the employer find the best candidate for the job, however, this is within certain limits, as interactions with job candidates and questions posed should not violate any human right or data protection rights.

Prohibition of discrimination and exceptions

First and foremost, it is unethical and potentially discriminatory for an employer to enquire about an applicant’s sexual orientation, religion, health conditions, or background.

In the case of female candidates, it is inappropriate for the employer to inquire about pregnancy, children, and childcare arrangements, unless the employer can demonstrate that such information is required due to the nature of the job.

Employers may need to ask a candidate with a disability about their disability in order to determine whether they will be able to perform the inherent requirements of the job, assess any health and safety risks, or identify any workplace adjustments that may be required.

Processing of Personal Data during recruitment process

Any pre-employment vetting or checks performed by the employer must be in line with the General Data Protection Regulation (GDPR) and the Data Protection Act (DPA) in Malta.

Processing of personal data, including information about an actual or alleged criminal offence, requires the employer to have a lawful basis for such processing, such as a legal obligation, or a lawful authority. In the absence of either, consent is required and employment is not being dependent upon such consent.

Data collected during the recruitment process should generally be deleted as soon as it becomes clear that an offer of employment will not be made or is not accepted by the individual concerned. The individual must also be correctly informed of any such processing before they engage with the recruitment process.

Testing of applicants

Only after signing an employment contract that includes a provision allowing such tests may selected candidates be subjected to medical testing and/or drug and alcohol testing.

In the case of medical examinations, the results cannot predict a candidate's success in being chosen. Drug testing is usually permitted when it is justified by the job application context, when employees are performing safety or security sensitive work, or when an employer has a reasonable suspicion that an employee is impaired by drugs or alcohol at work or has concerns relating to public safety and the protection of rights and freedoms of others.

Employers may also perform other known tests, depending on type of position and industry in question. These may include achievement tests, personality test, aptitude tests, practical test etc.