Wednesday, March 06, 2013

Helen Wilsenach, partner at Bowman Gilfillan, the leading pan-African corporate law firm commented that, “When contemplating promoting employees, some employers run polygraph tests on the candidates in order to assess their integrity. In terms of South African law, polygraph testing is permitted when employers consider candidates for promotions. It is the manner in which the lie-detector test is used that becomes an issue.”
The Labour Court recently dealt with this issue in the case of Sedibeng District Municipality v The South African Local Government Bargaining Council and Others 2012 JDR 1522 (LC).
In this case it was accepted that polygraph testing can be used by employers as a legitimate tool in considering promotions, and that such use would not be at odds with South African jurisprudence. The issue, however, was the finding by the arbitrator that the reason the employees were not appointed was simply because they failed the polygraph test.
Said Ms Wilsenach: “In this case, there was no other independent evidence that the two employees rejected for promotion were previously implicated in some wrongdoing. The polygraph test result was the sole reason for not appointing candidates who would otherwise have succeeded.
“This resulted in the test not merely being one of many factors to weigh up, but a deciding one. The court held that even if polygraph test results constitute relevant material in determining a person’s integrity, the question remains whether it is fair to rely exclusively on them as a touchstone of integrity in the recruitment context.
“The court held that the exclusive reliance on the polygraph test results to eliminate candidates for appointment on the basis of their ‘deceitful character’, in the absence of any other information placing a question mark over their integrity, is unfair.”
The relief granted by the court was that the employer was to place the employees in the same financial position they would have been in had they been appointed to the new position if their application succeeded.
It is apparent from this case that there are stringent requirements for the use of polygraph tests by the employers in the context of promotions. There are also harsh consequences for failure to use the test correctly.
“Employers must ensure that when using a lie-detector test in recruitment processes, the results may not be decisive on whether or not the candidate is appointed. Employers need to look at many factors, including the results of the polygraph test, but such results should not be relied on exclusively as the courts may view this as an unfair labour practice,” said Ms Wilsenach.