Recruiting and retaining the best people is vital for your business to be successful. Effective recruitment means appointing the right people in the right positions so that your objectives for providing quality services and goods to your customers are met.
However, it is an area where unwary employers can easily fall foul of employment law and face potential claims. Being aware of the watch points below can help you avoid discrimination and observe data protection principles.
- Preparation - The first step to fair recruitment is to produce a job and person specification which includes only requirements necessary to the job. These should be drafted with the employer’s equality and diversity policy in mind. Job adverts should be checked for discriminatory content – such as “young and active” – then placed to reach as wide an audience of jobseekers as possible.
- Interviewer training - It is unlawful to discriminate against job applicants because of a protected characteristic such as age, disability, marital status, pregnancy, or maternity. This means interview questions about age, child care obligations or pregnancy, for example, should be avoided. Applicants who believe they have been discriminated against because of a protected characteristic can seek compensation. Ensure interviewing staff have been trained or at least referred to the employer’s policy on equality and diversity to minimise the risk of the employer being held liable for discriminatory acts of interviewers.
- Health - Employers are understandably interested in whether an applicant is able to attend and carry out the job regularly and efficiently. However, questions about health and sickness absence should be avoided until the employee has been shortlisted or provisionally offered the job. Offers can be made subject to satisfactory medicals. Questions about health may be asked earlier in limited circumstances including to assess whether any reasonable adjustments are required to interview arrangements.
- Disclosure of convictions - Some roles will require applicants to undergo enhanced disclosure procedures or to be members of the Protecting Vulnerable Groups (PVG) Scheme and offers can be subject to a satisfactory disclosure or PVG Report. Otherwise employers can only require applicants to disclose unspent convictions. Employers should bear in mind that with effect from 10 March 2014 different rehabilitation periods apply in different parts of the UK depending on where the job is based.
- Data protection - In the course of interviewing applicants employers will process personal data and/or sensitive personal data. This should be handled in accordance with the Data Protection Act and data protection principles – for example only processed fairly and lawfully and kept for no longer than necessary. Unless applicants are offered and accept the job it should not be necessary to keep data for longer than three to six months at the most.
- Social media - Increasingly, employers are reviewing social media profiles in making recruitment decisions. There is no reason why employers cannot do this subject to two caveats: first this is “processing” subject to the Data Protection Act and applicants should be informed that it will take place; second, using social media in this way may increase the risk of employers knowing about applicants’ protected characteristics, such as sexual orientation or disability, and may increase the risk of claims of discrimination in recruitment. Proper training of interviewers and a transparent approach to using social media in recruitment will minimise these risks.
- References - Most job offers are subject to satisfactory references. Although references are more often than not simple factual statements, take care on receiving an unsatisfactory reference. These are disclosable by the receiving employer on request by the applicant so if an offer of employment is to be withdrawn due to an unacceptable reference, reasons should be carefully thought through to ensure there is no potentially discriminatory reasoning.
- Immigration Checks - Employers should check entitlement to work in the UK before successful applicants start work. This should not be done on the basis of the employer’s assessment of likely immigration status but for all to avoid allegations of discrimination. The Border Agency website has a list of acceptable documents and a helpline if needed. This is a vital step as fines for employing illegal workers recently doubled.
If you would like to discuss any of these issues further, please contact a member of our Employment team.
