If an external candidate is unavailable for an interview at the time designated by the hiring manager, can the organization rescind their offer to interview the candidate?
Answer: An interview is a meeting between an employer and an applicant to discuss potential employment. The offer to interview a potential employee does not bind the employer as a contract would, or create any duty to work with their schedule. In the absence of a collective agreement or other contract which would apply to the specific situation, there is no duty to interview a particular individual or hold a job open for her when she is not available to be interviewed.
There is also no general duty to accommodate an applicant who is unable to attend an interview at the designated time and place. However, if the cause of the interviewee’s unavailability is a protected ground under the applicable human rights legislation, there may be a duty to accommodate.
In all Canadian jurisdictions, human rights legislation restricts how employers select, interview and hire new employees. For example, Ontario’s Human Rights Code prohibits discrimination on the grounds of race, ethnicity, place of origin, sex, religion and several other grounds. One of the objectives of the legislation is to ensure employment decisions are based on the applicant’s abilities and not on extrinsic factors.
In the course of scheduling interviews, situations may arise where a potential employee is invited to interview on a day that is, for example, a recognized holiday in the applicant’s religion. The employer should make a reasonable effort to accommodate the applicant in such a case, unless there is a bona fide reason why accommodation is impossible.
Another potential issue exists where an applicant is unable to attend because of family commitments. For example, an applicant may inform the employer she cannot attend before or after business hours (early in the morning or later in the evening) due to childcare commitments. In this situation, the employer must be careful not to prejudge the applicant’s availability for the job and should make the effort to accommodate the prospective employee.
Generally speaking, difficulties caused by protected grounds should be accommodated to the extent possible. Failure to do so can be a violation of the applicable human rights legislation. Given the tendency of the courts to take a strict approach to human rights complaints in the employment context, employers should review their practices and policies to ensure they are consistent with the applicable human rights code and, in particular, duty to accommodate.
Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].
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