Recruitment – managing the legal risks – Part 1

Recruitment activity often tails off in the summer months and kicks off again in September. Now is the perfect time to plan your autumn recruitment to ensure that your business picks up the best of the people who return from their summer holidays keen to find a new job.

This two-part bullet-point guide explains the key issues regarding how to manage the legal risks at each stage of the recruitment process.

There is nothing to prevent an employer from hiring the best person for the job, but an employer has obligation not to discriminate against, victimise or harass job applicants.  It is unlawful for an employer to discriminate in any of the arrangements made to fill a vacancy, the terms of employment that are offered or any decision to refuse someone a job. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

In practical terms the biggest legal risk during the recruitment process is a discrimination claim from an unsuccessful candidate.

Recruitment: managing the legal risks – Part 1

1.   Job descriptions

• The first step is to get the job description right.  Avoid using potentially discriminatory terminology like “salesman” or “waitress”.

• Ensure that all the things in the job description are actually necessary for the job you are trying to recruit for.  So, don’t say that an accountant needs to be “confident in dealing with external clients” if the job doesn’t entail any work with external clients.  That requirement is unnecessary and could lead to discrimination e.g. against disabled people who have difficulty dealing with other people e.g. people with autism.  Another example would be saying that a job requires “regular Sunday working” which could put off Christians who don’t want to work on Sundays, and could amount to indirect discrimination on the grounds of religion unless it can be objectively justified.

• As well as the discrimination risk, placing unnecessary restrictions in the job description also narrows the pool of people who are likely to apply for the position, so you may not actually get the best person for the job.

2.   Adverts

• Beware of recruiting solely based on existing staff recommendations.  This can lead to discrimination e.g. if your workforce mainly drawn from one racial group.  It can also mean you’re your workforce lacks diversity, and you may not get the best person for the job.

• If you are advertising for position internally,  don’t forget those on maternity leave, sick leave or other extended absence.  Problems often arise when they are excluded from the application process in error, and it can lead to discrimination claims.

• Consider how best to reach your intended audience.  Should you go directly to a recruitment consultant, advertise in industry publications or try social media?  The answer is likely to depend on the specific role you are recruiting for.

• Beware of the vexatious litigant.  There are people out there who try to make a living from applying for jobs which they claim have been advertised in a discriminatory way.  There have been cases where the Tribunal has made clear that the legislation is not intended to provide a source of income to people who complain about discriminatory job advertisements but have no desire to fill them.  However, these can still be time consuming and expensive to deal with.

3.   Job applications

• Whether you are asking for a CV or for people to complete a detailed application form, try to use a standardised approach for job applications.  This will help you to compare different applications in a more objective way.

• Take care if using social media.  Many HR professionals frequently use Facebook, Linked In etc. to find out more about the job applicants.  However, you need to be careful what you look for, and how you use it.  Again, the key is to make objective decisions in a non-discriminatory way.

• Consider reasonable adjustments.  In the job application stage an employer is under an obligation to make reasonable adjustments for disabled people.  For example, an employer will need to provide on request the application in a format that makes it accessible for a disabled person e.g. supplying the application form in large print, Braille or audio format.  Think about how you would provide your application form accessibly if requested.

• Be careful what you do with personal information relating to sex, age etc.  One option is to keep this information separate from the rest of the application form so that the people doing the shortlisting are not swayed by these factors.

4.   Positive action

• “Positive discrimination” – treating someone more favourably because they have a protected characteristic – is unlawful (with some exceptions in relation to those who have a disability or who are pregnant or on maternity leave).

• “Positive action” to enable/encourage people with a particular protected characteristic who are disadvantaged, have different needs or are disproportionately under-represented in a workforce, can be lawful under certain circumstances.  An example of positive action would be advertising roles in a publication whose readership comprises mainly people with that characteristic or holding certain events targeted at receiving more job applications from such people.

• Positive action can also extend to treating a person with a protected characteristic more favourably in recruitment or promotion decisions than another individual, as long as the person with the relevant characteristic is “as qualified as” the other person.  However, this power, set out in the Equality Act 2010 is controversial and most employers choose not to use it.

5.   Short-listing

• Score candidates against the criteria in the person specification or job description for the role.  This objective approach puts you in a good position to rebut allegations of discrimination from unsuccessful candidates.

• Give those doing the scoring a clear framework against which to score people to ensure consistency – this is particularly important where a number of an employer’s staff are going to be doing the scoring.

• Consider weighting criteria according to the importance of the criteria to the role.

• To decide which candidates progress to the next stage you could require a minimum score – or take the top 10/20 or the top 10%/20%.

Click here to read part 2.