Recruitment: Legal Obligations of the Employer

The information requested during recruitment must have a direct link to the position offered or to the assessment of professional skills. Candidates who have been discriminated against during the recruitment process can take legal action.

In principle, the employer is free to recruit directly (transfer, professional mobility, promotion), or indirectly (spontaneous application, press, internet, recruitment agency, temporary work agency, Anapec, universities), and according to the company's needs, one or more employees. However, this freedom is limited because the labor code provides for the obligation of the employer, recruitment agencies, and temporary employment agencies to respect mandatory rules during the recruitment process in order to protect the privacy of candidates and the rights of recruited employees. These rules concern the information requested, the candidate's obligations of loyalty, the prohibition of discrimination, obligations towards certain workers, priority of re-hiring and formalities relating to recruitment.

1- Information requested
In application of the provisions of Article 507 of the labor code, the employer has the obligation to respect the candidates he needs... by only considering for this purpose the qualifications, experience and information received from job seekers. However, it is forbidden to mention in the job advertisement false allegations or false information concerning the real nature of the activities or the place of work.
This requested information makes it possible to assess the candidate's ability to fill the vacant position or his professional skills. Thus, this information must have a direct link with the job offered or with the assessment of these skills. However, the candidate must be informed beforehand of the techniques and methods of recruitment used (e.g. graphology test, knowledge test...) with regard to him. The results obtained must remain confidential.

2- Candidate's obligations of loyalty
The candidate must answer in good faith the questions asked. Moreover, the employer cannot reproach a candidate for omissions or lies committed by him during the recruitment process unless the lies have a direct link with the position held. In this case, the employer may terminate the concluded contract.

3- Prohibition of discrimination
The law protects any candidate who responds to a job offer, from the sending of the curriculum vitae which must be anonymous until the assignment or integration. For this purpose, the labor code prohibits employers from selecting candidates on direct or indirect discriminatory criteria related to their origin, sex, age, religious beliefs (wearing the veil, for example), union activities, surname, family situation, state of health, disability (Article 9 of the labor code). Such discrimination is condemned by Article 12 of the labor code. Candidates who have been discriminated against during the recruitment process can take legal action. In this case, it is incumbent upon the employer to prove that his decision is justified by objective elements unrelated to any discrimination.

4- "Particular" candidates
The employer is required to respect certain obligations towards certain employees. Firstly, it is forbidden to employ disabled employees to work that could harm them or that could aggravate their disability (Article 167 of the labor code). Thus, the employer must submit to medical examination the disabled employees he intends to employ. He must also equip his premises with the necessary accessibility to facilitate the work of disabled employees and ensure that they are provided with all the conditions of hygiene and safety (169 of the labor code). Disabled employees benefit from the principle of equal treatment, which obliges the employer to consider appropriate measures in their favor (Article 170 of the labor code).
Secondly, to recruit a foreign employee, the law requires obtaining authorization from the government authority in charge of labor. This authorization is granted in the form of a visa affixed to the employment contract. The date of the visa is the date on which the employment contract takes effect. Any modification of the contract is also subject to visa. The authorization may be withdrawn at any time by the government authority in charge of labor (Article 516 of the labor code). This contract must conform to the model set by the Ministry of Employment.
It should be noted that certain foreign employees are exempt from this authorization. These are Senegalese, Algerians and Tunisians.
Thirdly, it is forbidden to employ employees before the age of 15, under penalty of criminal sanctions. It is also forbidden to employ a retired employee. However, the latter may continue to work after retirement age, after authorization from the Ministry of Employment at the request of the employer and with the consent of the employee (Article 526 of the labor code).
Fourthly, Article 262 paragraph 2 provides for the prohibition of employing employees during their paid annual leave. It is also forbidden for any employer to hire an employee from a competing company in violation of the non-competition clause, which may constitute poaching (act of unfair competition). In this case, the employer may take legal action against the employee who has not respected the non-competition clause and against the employer to compensate for the damage suffered by the company in the context of unfair competition.
Fifthly, recourse to the indefinite employment contract (CDI) must remain the general rule, and recourse to a fixed-term or temporary contract must remain exceptional and limited to the cases listed by the labor code, namely: the replacement of an employee, the temporary increase in activity, the execution of seasonal work, etc. (Articles 16, 17 and 496 of the labor code).
Finally, it is forbidden to indicate a maximum age limit in a job offer unless this limitation is provided for by law or by the nature of the activity.

5- Priority of employment or re-employment
The beneficiaries of priority employment are:

• Permanent or temporary employees dismissed for economic, technological or structural reasons for less than a year,
• Employees whose contract is suspended for the following reasons: maternity leave, absence due to a work accident or occupational disease, absence due to illness for less than 180 days, training or education leave;
• War disabled and resistance fighters or former combatants at the request of the labor inspector, those called up at the end of military service.

6- Formalities relating to recruitment
The employer must consider certain formalities relating to recruitment. Within 8 days preceding the recruitment, the employer must make a declaration to the labor inspector. At the time of recruitment, the employer must request the registration with the CNSS of the employee who has never been registered, otherwise a simple information to social security is sufficient. Before the expiry of the probationary period, the hired person must undergo a medical examination by an occupational physician. On the other hand, the employer must give the employee all the documents such as the employment contract, a work card, a payslip, a copy of the internal regulations, an applicable collective agreement... The employer must inform the hired employee of the name of the body responsible for insurance against work accidents. As such, the employer must have this coverage for each recruited employee.

Brahim Atrouch, social law consultant