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8 Malaysian J. Syariah & L. 1 (2020)

handle is hein.journals/mlsnjl8 and id is 1 raw text is: Ml y_ rfVOL 8 No.1 I JUNE 2020 ISSN: 1985-7454 1 E-ISSN: 2590-4396 www.mjsl.usim.edu.my PROTECTION AGAINST PRE-EMPLOYMENT DISCRIMINATION IN MALAYSIA: A LEGAL ANALYSIS Nik Salida Suhaila Nik Saleh1 'Faculty of Syarih and Law, Universiti Sains Islam Malaysia E-mail: salidagusim.edu.my ABSTRACT The principles of equal rights and non-discrimination as well as the right to equality before the law and equal protection of the law are fundamental human rights principles enshrined under Article 55 of United Nations Charter and Article 7 of the Universal Declaration of Human Rights (UDHR). The UDHR, international human rights standards and state practice consistently view employment and the right to work to include pre-employment. Therefore, rights during pre-employment would also fall within the scope of right to work regime. It is important to stress that the employer must not make employment decisions based on personal characteristics such as gender, race, nationality, ethnic origin, religion or belief, disability, age or any unrelated issues to inherent job requirements. Employer must base the employment relationship on the principle of equal opportunity and fair treatment and will not discriminate with respect to all aspects of the employment relationship, including recruitment and hiring, compensation (including wages and benefits), working conditions and terms of employment, access to training, promotion, termination of employment or retirement, and discipline. This paper will analyse the international laws, laws of other jurisdictions and Malaysian laws on protection against pre- employment discrimination. Recommendations would be accorded to ensure that Malaysia guarantees equal rights among jobseekers. Keywords: Pre-employment, non-discrimination, equal rights, human rights Introduction Jobseekers, particularly among persons with disabilities (PWD) and women require legal protection as they continue to face discrimination. Discrimination against citizens based on race, religion, ethnicity and gender is constitutionally prohibited. During the recent Commission of Human Rights' Stakeholder Consultation on 17th September 2019, it was learned that pregnant women have suffered from discrimination not only during employment but even while seeking employment. Centre for Governance and Political Studies (CENT-GPS), a Kuala Lumpur-based behavioural and social science research firm also highlighted during the Stakeholder Consultation of their 2019 survey finding that Indian and Malay candidates are more likely to face discrimination when seeking employment in the private sector (Centre for Governance and Political Studies). There is currently no written law that specifically prohibits pre-employment discrimination in Malaysia. Proposed introduction of protections for jobseekers against discrimination were withdrawn because the Malaysian Employment Act 1955 (the Act) is restricted to employees with their employers. Even though the Preamble of the Act expressly states that it is an Act relating to employment, yet, restricting to only relationship between employee and employer and not extended to equal recruitment opportunity 1

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