With relatively new legislation in place governing the treatment of people in the workplace, employers need to be aware of their obligations and responsibilities. These extend not only to duties during the employment relationship, but also in the recruitment process. There are several potential claims that might arise during the recruitment process such as discrimination in arrangements for an interview and discrimination by failure to offer employment. There’s also the possibility of harassment claims.
Employers need to be particularly wary as there’s a potential for liability through the acts of its staff members involved in the recruitment process. It is for this reason that each step of the process must be in line with the employer’s recruitment and equal opportunities policies.
What, then, can be done to avoid such claims arising?
The job advertisement – what do employers need to consider?
The onus is on employers to think about fairness from the very start of the recruitment procedure. Before even placing any adverts for a job, it is best to draw up a specification concentrating on the skills which will be required to carry out that 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.
Once the advert has been prepared, you must consider where the advert will be shown. It’s possible that advertising exclusively through certain media, such as the Internet, will prevent the advert being seen by certain classes of potential candidates. It’s also important to avoid recruitment by means of “word of mouth” as this can lead to a lack of diversity in the make-up of the workforce.
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’s essential to avoid any stereotypical connotations and be careful with requirements which will exclude certain classes. An example of this might be the ability to work long hours which may exclude young mothers from applying for the job. If, however, the requirement is a genuine occupational requirement, 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 the employer by the Equality and Human Rights Commission. As well as bad publicity, this may lead to an injunction against further advertisements if the offence is likely to re-occur. There may also be discrimination claims brought by individuals if they can show that they have been personally discriminated against.
The application process
It is useful to use a standard type of application form so that candidates are placed on an equal footing. Thought should also be given as to how these forms are available. Again, using only the Internet can potentially prevent certain classes of people from accessing them. There should also be consideration as to the making of reasonable adjustments for disabled applicants. For example, should the application form be available in Braille for visually impaired applicants?
Although employers are entitled to monitor the make-up of their workforce, it’s not generally necessary for the recruitment process so candidates can be asked separately about their backgrounds.
When short listing 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’s best to appoint a panel to go through the applications so as 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.
The interview: making arrangements
As is the case with the selection process, employers 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 to be put to candidates. In all cases, these questions must in some way be linked to the job. Although interview technique will often involve setting a candidate at ease, staff must be careful to keep any initial ice-breaking chat to a minimum. This should help to avoid issues arising which may lead to a decision not being based entirely on an objective assessment of the candidate’s ability.
As mentioned above, there is a risk of harassment claims stemming from behaviour of staff. This is defined by ACAS as unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. A claim can be successful if the actions or comments are viewed as demeaning and unacceptable to the recipient. The risk of harassment is at its highest during the interview. That being the case, 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 arrangements for the interview, employers must consider whether any reasonable adjustments ought to be made to avoid discriminating against disabled candidates. If any psychometric testing is to be carried out, for example, how will sight-impaired individuals be tested? The timing of the interview must also be considered as some candidates may, for medical or child care reasons for example, be less able to attend interviews at certain times of day.
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. Employers should always respond promptly and in accordance with any policies you have in place to any such requests.
Throughout the selection process it’s vital to retain a paper trail showing records of the decision making which has taken place. This can then be used as evidence to defend against any discrimination claim which may arise.
Pre-employment checks: what about references?
Any job offer ought to be made conditional upon the receipt of satisfactory references from previous employers. This safeguards the employer’s 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. Examples include lawyers, accountants, dentists, nurses, midwives and police constables. For these professions, and for those who will be working closely with children or vulnerable adults, all previous convictions will have to be disclosed.
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 such permission. Guarding companies should be particularly astute on this matter following the recent Home Office revelations on illegal working in the private sector.
The job offer
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 which 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 Employment Rights Act 1996.
Whether or not there are to be conditions in the offer must be contemplated by the employer. Any which are required must be set out in the offer letter. Examples include receipt of satisfactory references or obtaining necessary qualifications for the job. For more senior positions – and depending on the area of work – it’s also advisable to check whether any restrictive covenants are in place from previous employment which bind the prospective employee.
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 to all. Remember that the above is not an exhaustive list of action which can be taken to comply with legal obligations, and the requirements may vary depending on the individual circumstances.
Graeme Perry is a trainee solicitor with City law firm Sykes Anderson Solicitors LLP
