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With relatively new legislation governing the treatment of staff, employers need to be aware of their obligations and responsibilities – not just during employment, but also in the recruitment process.
There are several claims that might arise during the recruitment process, such as discrimination in arrangements for an interview and discrimination by failure to offer employment. There is also the possibility of harassment claims.
Employers need to be particularly wary as there is a potential for liability through the conduct of its staff members involved in recruiting. So what can be done to avoid such claims arising?
The onus is on employers to think about fairness from the very start of the recruitment process.
Before even placing any job adverts, it is best to draw up a specification concentrating on the skills required to carry out the job. The skills and experience required should be objectively assessed. By setting out specific criteria for successful applicants to meet, the chances of subjective decisions being made about individuals should be reduced.
However, when setting these criteria, you must be careful to avoid excluding any classes of individuals. An example might be requiring a candidate to be "mature". In any case, the job requirements must be intrinsically linked to the work.
You should decide on the content of any advert with great care. If this goes wrong, it may lead to a potential discrimination claim, or be used as evidence of a discriminatory culture. It is essential to take care with requirements that will exclude certain classes.
If, however, the requirement is genuine, the advert should state this and should make reference to the statutory exception in question. If an advert is considered discriminatory, there may be action brought against you by the Equality and Human Rights Commission. There may also be discrimination claims brought by individuals if they can show they have been personally discriminated against.
Although employers are entitled to monitor the make-up of their workforce, it is not generally necessary for the recruitment process, so candidates can be asked separately about their backgrounds.
When shortlisting applicants, the job specification and requirements for the role must all be considered and objectively matched to the applicants. These criteria must be applied at each stage to ensure fairness throughout the process.
If possible, it is best to appoint a panel to go through the applications to reduce the likelihood of a subjective decision. Each criterion should be given a different weighting and the results of each member of the panel analysed at the end to decide the most suitable candidates for interview.
As with the selection process, you should consider whether a panel is commercially viable. If the business is small and cannot afford for more than one staff member to interview candidates, it may be best to bring a professional recruitment individual in to be part of the interview. Increasing the number of people involved in the interview should lead to an appointment based more on objective reasons.
The interviewers should meet beforehand to determine the questions. In all cases, these questions must in some way be linked to the job.
As mentioned above, there is a risk of harassment claims stemming from behaviour of staff. This is '830'defined by ACAS as unwanted conduct affecting the dignity of men and women in the workplace. It may be a persistent or isolated incident related to:
The risk of harassment is at its highest during the interview. Staff who are to carry out interviews should be properly trained in these matters to reduce the likelihood of such a claim arising.
With regards to the actual interview, you must consider whether any reasonable adjustments ought to be made to avoid discriminating against disabled candidates.
Following the interview, candidates may request feedback from the interviewer. Failure to provide such feedback can be used to imply that the reason for rejection is discriminatory.
Throughout the selection process it is vital to retain a paper trail showing records of the decision making. This can then be used as evidence to defend against any discrimination claim that may arise.
Although there is no legal obligation for an employer to provide references (except in certain circumstances such as contractual agreements), it is always best practice to ask for them. Any job offer should be made conditional on the receipt of satisfactory references from previous employers. This safeguards your interests.
It is possible to ask candidates about any criminal records. However, under the Rehabilitation of Offenders Act, it may not be necessary for the candidate to reveal old convictions if they have become 'spent' under the legislation.
Employers must remember that they are under a duty to ensure that those they employ have permission to work in the UK. It is a civil offence if you negligently employ someone who doesn't have permission.
When sending out an offer, you must decide whether it is going to contain all the contractual terms of employment. If so, it must contain all relevant terms, plus expressly incorporate other documents that contain contractual terms, such as a staff handbook.
In case the offer and contract are to be separate, provision should be made that the contract terms will prevail should there be any inconsistency between terms. In any case, the offer letter/contract must as a minimum requirement include the written particulars required under Section 1 of the Employment Rights Act 1996.
The employer must consider whether or not there are to be conditions in the offer. Any that are required must be set out in the offer letter. Examples include receipt of satisfactory references, or obtaining necessary qualifications for the job.
There is a large amount of responsibility upon employers when recruiting and the key to keeping within the law and avoiding claims being brought by job applicants is to ensure fairness for all. The above is not an exhaustive list of action that can be taken to comply with law, and requirements may vary depending on the individual circumstances.
Graeme Perry
Graeme Perry is a trainee solicitor with City law firm Sykes Anderson Solicitors LLP.
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