So, you’ve been given the budget to go ahead and recruit your new employees. You know exactly what type of candidates you’re after and exactly how to attract them. But, take heed before going to press with your advert and arranging those interviews. There are a number of legal pitfalls to be aware of so as to avoid the recruitment budget being blown on tribunal settlements!
All candidates are protected against discrimination in respect of their:
Candidates are protected throughout the recruitment process and beyond, covering arrangements made for recruitment, the terms of employment offered and refusing or deliberately failing to offer employment.
A claim for discrimination does not just arise from an explicit act of discrimination (known as “direct discrimination”). It may also arise indirectly if a practice inadvertently discriminates against a particular group of people, for example, advertising for a “mature” employee could give rise to age discrimination against younger candidates. Similarly, advertising for full time staff only could give rise to sex discrimination on the basis that females traditionally have responsibility for childcare and are less likely to be able to work full time hours. This type of discrimination may be justifiable if there are objective grounds, such as a need for a role to be full time. This can be difficult to establish in some circumstances, so it is best to seek advice.
Legislation recognises that there are some jobs which require a candidate to have particular characteristics and so allows some discriminatory behaviour provided that it is based on a “genuine occupational requirement”. A crude but nevertheless real example being a requirement for new recruits to a female chatline - the advert stated that only females need apply therefore directly discriminating against males. This was a necessary requisite for the job and therefore was deemed to be justifiable discrimination. Again, we would advise that you always seek legal advice when considering this approach.
Discrimination is a whole topic in itself and this article provides nothing more than a brief overview – but with the above points in mind, here are some practical hints and tips to assist you during the recruitment process:
A carefully drafted job description and person specification will help you to ensure that you do not adopt discriminatory criteria, and also achieves its purpose by attracting the right candidates. You should draw up objective selection criteria and consider which of these are essential and which are desirable. This will also assist you later when applying those criteria to your applicants.
Phrases which may discriminate should be avoided and care should be taken with certain phrases, as these are not always immediately obvious. For example, common phrases such as “ability to work long hours” and “must be able to travel” may indirectly discriminate against females for the same reasons outlined above.
Choosing to place an advert exclusively internally is usually acceptable, particularly if there are redundancy procedures taking place within your organisation. However, when considering where to advertise externally, you should consider how this could limit your audience and if this may potentially exclude a particular group of candidates from applying. For example, advertising exclusively in women’s magazines may arguably exclude male candidates from the application process.
When short listing candidates, you should always refer back to the objective selection criteria collated in the person specification and the job description. If possible, more than one person should apply those criteria to all applicants to ensure as little bias as possible. It is also advisable to agree what weighting should be placed on the criteria.
At interview, only ever ask questions which relate to the candidates’ ability to do the job – this will help avoid discriminatory questions. It is a good idea to have a list of questions which are asked of all candidates in the same order, always ensuring that they apply only to the candidates’ ability to undertake the role.
Try to avoid social chitchat to avert the risk of any inappropriate questions being asked – questions or conversation about a candidate’s private life may be misinterpreted, even if such conversation was not intended to be discriminatory.
When making arrangements for interview, you should consider the effect such arrangements may have on your candidates. For example, for those candidates who have a disability you should consider whether the venue has wheelchair access? Ask successful applicants whether there are any special arrangements which you should make, as even the most prudent employer cannot cover all bases if they are not informed about what adjustments to make.
It is up to you how you wish to formalise the offer of employment – you may wish to send an offer letter for signature which can also be the employee’s contract of employment or otherwise, you may send a formal contract for the candidate to sign. Either way, you must ensure that the intended contractual document contains all the relevant terms and conditions of employment. As a minimum you must include all points required to comply with a section 1 written statement of particulars. It may be a good idea to take advice to ensure the document deals with your requirements.
If the offer of employment is subject to any conditions, for example satisfactory references, CRB checks, work permit etc. then you should make this very clear in your offer letter.
You should decide beforehand whether you are going to provide feedback or not. If you opt to do so, then it is advisable that feedback is given only in written form. You should avoid providing verbal feedback as this runs the risk of entering into general chitchat which may result in the wrong thing being said. Feedback should be sensitive and relate only to the candidates’ inability to meet the requirements of the job description or the person specification.
If you have a general policy to not provide feedback then you must remain consistent in your approach and refuse to provide feedback requests to all unsuccessful applicants, including those who make individual requests. Providing feedback inconsistently may result in an assumption that the decision to reject the applicant was taken on a discriminatory basis.
If you’ve any questions on any of the above, or any other employment law issues, then please contact Nicola Brown at Pure Employment Law who will be able to assist.
Please note that this article is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
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