Attention: an application code is not without obligation!

A recruitment code is not optional. As soon as your company commits to a recruitment code – whether you draft it yourself or adopt the NVP recruitment code – you are legally obliged to comply with those rules. If you violate the code during a recruitment and selection procedure, you risk having to pay compensation to the rejected applicant. Many entrepreneurs underestimate this: a code intended to protect you can actually turn against you.

What is an application code?

A recruitment code is a document in which your company sets out how the entire recruitment and selection procedure is conducted. The code contains guidelines and practical agreements for each phase of the application process, ensuring applicants are assured of fair, transparent, and careful treatment.

The best-known variant is the NVP Recruitment Code of the Dutch Association for Personnel Management & Organizational Development. Many employers adopt this code or refer to it in their job advertisements and on their websites. What they often fail to realize is that as soon as you commit to such a code, the rules contained therein are no longer optional. You are bound by it, with all the consequences that entails.

A recruitment code belongs in the same category as other company codes and protocols, such as an email and internet protocol. All are documents that structure business operations – but which also bind the company legally.

Why a recruitment code is legally binding

The misunderstanding lies in the intention. Entrepreneurs usually draw up codes and protocols to cover themselves and to enforce practical agreements. This makes business operations simpler and clearer. However, the downside effect is often overlooked: the document works both ways.

Anyone who commits to an application code, either publicly or during the procedure, creates a legitimate expectation among applicants that the rules contained therein will be adhered to. If you subsequently fail to comply with these rules, this may be unlawful towards the applicant. This is certainly true if you simply copy the code from the internet without verifying whether your own working methods align with it.

In practice, this is where things often go wrong. The actual recruitment and selection procedure within the company frequently does not align with the letter of the NVP Application Code. And it is precisely this discrepancy between theory and practice that poses the greatest risk.

What is included in a job application code?

A recruitment code describes what the applicant can expect from you at each stage. The precise content varies by company, but at its core, the following topics recur:

• Clear vacancy and job requirements. An honest and non-misleading description of the position, the procedure, and the selection criteria.
• Information and feedback. Agreements regarding what you share with the applicant and the timeframe within which you respond.
• Handling personal data with care. How you process, store, and delete application data, in accordance with privacy regulations.
• Inquiries and references. Whether and how you obtain information about the applicant – in principle, only after permission and with the knowledge of the applicant.
• Confidentiality and non-discrimination. Equal and respectful treatment of all candidates.
• Right to complain and lodge an objection. Where the applicant can go if he believes the procedure was not conducted fairly.

Important: every agreement you include is a commitment that you must honor. Therefore, only include what you actually deliver in practice.

Practical example: a violated recruitment code

How this can play out in practice is illustrated by a case in which Leiden University violated the NVP recruitment code. The university was looking for a new professor of English linguistics. A member of the appointment advisory committee collected data on an applicant, and that information was used within the committee—with the permission of the chair.

This occurred without any notification to the applicant and without their knowledge. The applicant was also never given the opportunity to respond to the collected information at a later stage. Nevertheless, the university had explicitly committed itself to the NVP Application Code, which provides clear safeguards on this point: inquiries and investigations should only take place with the applicant's permission and knowledge.

The Executive Board discovered the irregularities, dissolved the appointment advisory committee, assembled a new committee, and invited the applicant to reapply. The applicant declined, investigated the true state of affairs, and took the matter to court.

What did the judge rule?

The judge did not accept the university's defense that the code was 'non-binding'. By referring to the NVP recruitment code itself, the university had subjected the procedure to those rules – and the applicant was entitled to rely on the code being correctly adhered to. The conduct was deemed unlawful.

The court ruled that the applicant had actually suffered damages – namely, the costs he had to incur to ascertain the true state of affairs. The claimed reputational damage was not awarded: the university had actually done everything possible to keep the applicant's name out of the press, whereas the applicant himself had distributed a press release. In addition, the university was ordered to pay the legal costs.

The core remains: a violation of a recruitment code to which you voluntarily committed yourself can lead to compensation and legal proceedings. The exact amount of such compensation always depends on the specific circumstances of the case.

What risks do you face as an employer?

The binding nature of business codes entails a number of concrete risks for entrepreneurs:

• Compensation. A rejected applicant may claim compensation for costs and damages arising from the violation.
• Legal costs. If proceedings ensue and you are unsuccessful, you may also be ordered to pay the legal costs.
• Reputational damage. A conflict regarding an unfair application process can have a negative impact on your image as an employer.
• Loss of suitable candidates. A procedure that founders on procedural errors costs you time, money, and possibly the best candidate.

The common thread: however well-intentioned a copied code may be, it only works to your advantage if your practice is fully aligned with it. Are you unsure whether your procedure is legally sound? Our legal experts are happy to advise you through our legal assistance for entrepreneurs.

This is how you avoid problems with your application code

You do not need to avoid using a recruitment code – on the contrary, a good code provides structure and prevents discussions. The important thing is that the code fits your working methods. A few practical next steps:

1. Draft your own customized application code. A self-drafted code aligns with your actual recruitment and selection procedure while simultaneously safeguarding the interests of the applicant.
2. Do not blindly copy codes and protocols from the internet. What you adopt applies in full – including the rules you do not comply with in practice.
3. Check whether your procedure and your documents align. Review your job descriptions, intake interviews, and assessment for inconsistencies with the code.
4. Be careful with inquiries and references. Only gather information about an applicant after you have permission and give the candidate the opportunity to respond.
5. Document agreements consistently. Align your recruitment code with your other documents, such as the employee handbook and your terms of employment.

This way, you benefit from the advantages of a clear procedure without having to fear exorbitant compensation payments.

Frequently asked questions about the application code

Is the NVP Recruitment Code legally mandatory?

No, the NVP Recruitment Code is not law and does not automatically apply to every employer. However, as soon as you voluntarily commit to it – for example, by referring to it or adopting the code – you are obliged to comply with the rules.

What happens if I do not adhere to my own application code?

In that case, a rejected applicant can invoke that code. A violation can be unlawful and lead to compensation, as the case study shows. The outcome depends on the specific circumstances.

Am I allowed to request references or make inquiries about an applicant?

In principle, only with the consent and knowledge of the applicant. The NVP Application Code and privacy regulations assume that you inform the candidate before gathering information, and that they are given the opportunity to respond to that information. If you fail to do so, you may be acting unlawfully.

Do I need a recruitment code as an employer?

A recruitment code is not mandatory, but it is advisable. A good code prevents disputes, ensures fair treatment of candidates, and strengthens your position as an employer – provided the code aligns with your actual procedure.

Can I just copy an application code from the internet?

That is not recommended. A copied code binds you just as much as a self-drafted one, including all rules your practice might not comply with. Customization that aligns with your own procedures is safer.

Does the binding nature also apply to other corporate codes and protocols?

Yes. The same principle applies to, for example, a dismissal protocol or an email and internet protocol. Anyone who commits to a code or protocol must comply with the agreements contained therein.

Have an application code or company code drawn up?

Do you want to be sure that your recruitment code, protocols, and employment documents align with your practice and provide you with legal protection, rather than binding you to rules you do not comply with? The employment law specialists at MKB Juristen are happy to assist you.

• Read more about our assistance with employment law.
• See how we help you with a customized employment contract and employee handbook

Schedule a no-obligation intake and we will explain what we can do for you.