Recruiting employees – beware legal pitfalls

Written by: Adam Bernstein
Published on: 6 Jul 2021
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Image: Wokandapix from Pixabay. risk scrabble

Image: © Wokandapix / Pixabay

Job and person descriptions

The starting point in any recruitment process is writing the job description. This focuses on what duties are applicable to a specific role and prevents disputes arising at a later stage. It also demonstrates you are following a fair and non‑discriminatory process.

The job description should be objective, identify the main purpose of the job and set out the specific tasks that need to be completed. You should avoid making assumptions as to how the role needs to be completed. For example, do not state that the role must be completed on a full-time basis if, in reality, it would be suited to part-time working or job sharing.

Next is a person specification. This identifies the skills, qualifications, experience and qualities you think the person carrying out the role should have.

Although this may seem straightforward, this is commonly where businesses fall foul of discrimination laws. For example, stating that any applicant must have a degree and five years’ experience is likely to be age discrimination. This is because any applicant who graduated less than five years ago – and, therefore, is likely to be younger than any applicant who graduated more than five years ago – is not going to be interviewed for the role.

Focus on the specific essential requirements of the role, as well as what an ideal candidate would have, but what is not essential.

Advertising

Which method you choose – web, print, social media – may depend on the costs involved.

However, the methods that are likely to cost less – such as word of mouth and internal recruitment – increase the risk of an indirect discrimination claim being pursued as you may find you have a very narrow group of potential applicants.

The wider you cast the net, the more likely you are to encourage a diverse range of applicants and reduce the risk of a complaint.

When preparing the wording of the advertisement, be careful not to use language that may be discriminatory.

Language can often be interpreted differently by different people. For example, you may say the ideal candidate should have a “mature outlook” as the role has a lot of responsibility. You may actually mean that you want someone who is level‑headed and, therefore, able to cope with the responsibility that goes with the job. However, the use of “mature outlook” may discourage younger people from applying and could seem discriminatory.

To prevent mistakes being made inadvertently, have someone review the wording for you – ideally from outside of the practice – to gauge his or her first impression of the advertisement.

If you decide to use a recruitment agency, you should ensure your instructions to the agency are clear and non-discriminatory.

Applications

Most employers require applicants to complete an application or submit their CV. But to avoid inadvertent discrimination, be prepared to provide forms in accessible formats if an applicant asks.

Also, try to ensure you apply a consistent and objective approach when considering each application.

It is recommended that, where possible, more than one person should be involved in considering applications to reduce the chance of discrimination. However, for many businesses that simply is not practical. Where you have sole responsibility for considering applications, have measures in place to reduce the risk of selection being made based on subjective assessments.

Apply (the same) criteria to each application. For example, award a point for each criterion the applicant meets, with those applicants who score the highest marks being invited for interview.

Interviewing applicants

It is important to maintain an objective perspective when interviewing shortlisted applicants. Avoiding stereotypes relating to an applicant, as making assumptions about an applicant’s “protected characteristic” could be discriminatory.

When arranging the interview, you should ask applicants in advance whether they have any special requirements – for example, to assist them with any physical impairments. Once notified of any disabilities, you will be under a duty to make reasonable adjustments to assist the applicant so that he or she is not put at a disadvantage when interviewed. You may be unaware that the applicant is disabled until it becomes apparent at the interview itself – but once noted, your duty to make reasonable adjustments starts at that point.

Where possible, interview questions should be structured and based on the application form, job description and person specification. And any questions that relate to the candidate’s ability to perform the role – such as on health or plans for a family – should be avoided.

Making an offer

Having found the right person after interviews, it is time for the job offer. This should be made in a letter that includes the key features of the role, such as job title, and salary. If the application and interview process raised any points of negotiation, these points should also be clarified in the letter, together with any conditions to which the offer is subject.

Because you could be found guilty of a criminal offence if you employ someone who does not have the right to work in the UK, you should always make it a condition of any job that the successful applicant can prove he or she has the right to work.

Other conditions commonly applied are the job being accepted by a date, satisfactory references from former employers and, if appropriate, a criminal records check.

The core elements of the agreement between you and the successful applicant – the contractual terms of employment – can also be set out in the offer letter. However, it is better to set these out in a separate employment contract to which the offer letter refers. Any non-contractual perks of the role, such as employee discounts, are best kept separate from the employment contract.

Employment contracts, whether set out in an offer letter or in a separate contract of employment, must include some compulsory terms that are prescribed by law. These include normal working hours, normal place of work, holiday entitlement and sick pay arrangements.

Finally, successful applicants should be given a probationary period so that you can assess their performance and suitability for the role over a defined period of time.