Recruiting the right people is essential for a growing business, but employers also need to ensure that their recruitment process is fair, consistent and legally compliant.
Legal risks can arise before an employee has even started work. Job adverts, interview questions, selection decisions, pre-employment checks and job offers can all create potential issues if they are handled incorrectly.
Having a clear recruitment process can help employers attract suitable candidates while reducing the risk of discrimination claims, contractual disputes and compliance problems.
Make sure the job advert is fair
Employers should think carefully about the language used in job adverts and person specifications.
Requirements should relate genuinely to the role and should not unnecessarily disadvantage people because of characteristics such as age, disability, race, religion or belief, sex or sexual orientation.
For example, descriptions such as “recent graduate” or requirements for a particular level of experience could potentially create discrimination risks if they cannot be objectively justified. Acas recommends using clear job descriptions and person specifications based on the skills and experience actually required.
Employers should also apply their recruitment policies consistently across candidates.
Use objective selection criteria
A clear selection process can help employers demonstrate that recruitment decisions were based on legitimate business requirements.
Criteria might include:
- Relevant skills and qualifications
- Previous experience
- Technical knowledge
- Communication skills
- Ability to carry out the key responsibilities of the role.
Managers involved in recruitment should understand how candidates will be assessed and keep appropriate records of their decisions.
Using broadly consistent questions and scoring criteria can also reduce the risk of unconscious bias influencing the process.
Avoid discriminatory interview questions
Employers must comply with discrimination law throughout recruitment, including during interviews.
Questions should focus on whether the candidate can perform the role rather than on personal characteristics that are not relevant to the job.
Particular care should be taken with questions about areas such as:
- Age
- Family or childcare arrangements
- Pregnancy
- Health or disability
- Religion
- Nationality.
There are limited circumstances where questions relating to protected characteristics may be appropriate, but employers should ensure there is a clear lawful reason for asking them.
Consider reasonable adjustments
Disabled applicants may require reasonable adjustments during the recruitment process.
This could include:
- Providing information in a different format
- Allowing additional time for an assessment
- Changing the format of an interview
- Ensuring interview premises are accessible.
Acas confirms that employers have a duty to make reasonable adjustments for disabled applicants and interviewees where required.
Employers should give candidates an opportunity to identify any adjustments they need.
Be careful when making a job offer
Job offers can be conditional or unconditional.
A conditional offer might depend on satisfactory references, proof of qualifications, a criminal record check where appropriate or confirmation of the candidate’s right to work.
Employers should make these conditions clear when the offer is made.
An unconditional offer can create a binding employment contract once accepted, even where acceptance is verbal. Withdrawing an accepted unconditional offer may therefore expose the employer to a breach of contract claim.
Putting the offer in writing can help ensure that both sides understand what has been agreed.
Carry out right to work checks
Employers must check that the people they employ have the legal right to work in the UK.
The appropriate right to work check must normally be completed before employment begins. Depending on the individual’s circumstances, this may involve a Home Office online check, an approved digital verification process or a manual document check.
Employers should follow the current Home Office process carefully, as carrying out the prescribed check can provide a statutory excuse against liability for a civil penalty if it later emerges that the person did not have permission to undertake the work.
Checks should also be applied consistently to avoid discrimination.
Take care with references and background checks
Employers may want to request references or carry out other pre-employment checks before confirming an appointment.
Any checks should be relevant and proportionate to the role.
For example, criminal record checks should only be requested where legally permitted and appropriate for the work involved.
Where an offer is conditional on satisfactory checks, the wording should make this clear so that the employer understands what options are available if a condition is not met.
Protect candidate information
Recruitment often involves processing significant amounts of personal information, including CVs, application forms, interview notes and sometimes sensitive information.
Employers should be clear about:
- What candidate data is being collected
- Why it is needed
- Who can access it
- How long it will be retained
- When it should be securely deleted.
Recruitment privacy information should explain how applicants’ personal data will be handled.
Put the employment terms in writing
Once a candidate is appointed, the employer should ensure that the correct contractual documentation is in place.
Employees and workers must receive a written statement containing the main terms of their employment from their first day, with certain additional information provided within two months.
Depending on the role, the wider employment contract may also need to address:
- Salary and benefits
- Working hours
- Probation
- Notice periods
- Bonus or commission
- Confidentiality
- Intellectual property
- Restrictive covenants
- Policies and procedures.
Senior or commercially important appointments may require more bespoke contractual protection.
Review your recruitment process regularly
Recruitment procedures should develop alongside the business.
Employers should periodically review job descriptions, interview practices, offer letters, contracts and recruitment policies to make sure they remain appropriate.
Training managers involved in recruitment can also help improve consistency and reduce the risk of avoidable mistakes.
Getting recruitment right from the start
A well-managed recruitment process can help employers find the right people while reducing legal and commercial risk.
DTM Legal’s Employment & HR team advises businesses on recruitment policies and procedures, employment contracts, senior appointments, discrimination risks and pre-employment issues.
If your business is recruiting employees or reviewing its recruitment process, contact DTM Legal’s Employment & HR team to discuss how we can help.