Africa-Press – Mauritius. Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party? There are no such restrictions or prohibitions.
However, pursuant to the Data Protection Act (DPA), an employer who collects personal data on an applicant must ensure that it has the applicant’s consent or that processing the personal data is necessary for the purposes provided in the DPA.
Medical examinations Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment? There are no such restrictions or prohibitions.
However, information relating to a person’s physical or mental health or condition falls within the definition of ‘special categories of personal data’ under the DPA.
An employer cannot collect or otherwise process such information unless it has obtained the applicant’s freely given consent and it is necessary for certain limited purposes laid down in the DPA, such as for occupational medicine or the assessment of the working capacity of the employee, among others.
Drug and alcohol testing Are there any restrictions or prohibitions against drug and alcohol testing of applicants? There are no such restrictions or prohibitions.
Hiring of employees Preference and discrimination Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?
The Workers’ Rights Act (WRA) requires an employer to give preference, as far as practicable, to an existing part-time worker or to a worker on a fixed-term contract in its organisation when a vacancy occurs for a full-time or permanent position.
Further, the general prohibition on discrimination by reason of certain characteristics applies to access to employment. Written contracts Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?
There is no requirement for a contract of employment to be in writing. The WRA considers that an oral agreement constitutes a valid employment agreement.
However, employers are required to provide a written statement of particulars of employment (in the form prescribed by the WRA) to workers engaged for more than one month. This statement is required to be submitted to an officer of the Ministry of Labour, Human Resource Development and Training.
Where a worker is employed on a fixed-term contract, the WRA requires that the worker be informed in writing by the employer of the specific skills required, the specific tasks to be carried out and the duration of such tasks.
Fixed-term contracts To what extent are fixed-term employment contracts permissible? Fixed-term contracts are permissible for the purposes of the temporary needs of the employer, namely for the performance and completion of a specific piece of work or an activity that is:
temporary and non-recurring; of a temporary, seasonal or short-term nature; covered by a short-term work arrangement that is normally project-related and aligned to changes in the product market;
to be carried out in replacement of another worker who is on approved leave or suspended from work; for the purpose of providing training to the workforce;
for a specific training contract; or undertaken in accordance with a specific work or training scheme set up by the government or a statutory body for a determinate duration.
The WRA expressly prohibits the employment of a worker (other than a non-citizen) on a fixed-term contract for a position that is of permanent nature, and for the performance of work relating to the fixed, recurring and permanent needs of the continuous, normal business activity of the employer.
The WRA does not impose a maximum duration for a fixed-term contract of employment. Probationary period What is the maximum probationary period permitted by law?
There is no maximum probationary period prescribed by law. The WRA does not deal with probationary periods. Classification as contractor or employee What are the primary factors that distinguish an independent contractor from an employee?
The Mauritius courts have traditionally considered that employment is characterised by a relationship of subordination (ie, the activity is performed under the direction, supervision and authority of the employer), whereas that characteristic is absent in relationships between independent contractors and their clients.
However, the existence of that characteristic is determined on a case-by-case basis. The WRA clarifies that a person’s appellation or the fact that they hold a business registration number do not preclude them from being characterised as an employee.
Temporary agency staffing Is there any legislation governing temporary staffing through recruitment agencies? The Recruitment of Workers Act requires agencies to be licensed to carry out recruitment activities and to furnish security as may be prescribed.
In particular, the Recruitment of Workers Act provides that an agency should only recruit a worker subsequent to a written request by an employer for recruitment and that all expenses incurred in the recruitment of a worker must be borne by the employer or the agency.
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