Dos and don'ts when recruiting

Recruitment can be a legal minefield for employers. Job applicants are protected from discrimination on grounds of sex, race, disability, religion/belief, sexual orientation and age. The protection provided by the Equality Act applies in respect of the recruitment process followed, the terms of employment offered and the decision as to whether to offer them the job.

This is a quick guide for employers on the dos and don’ts at the main stages of the recruitment process.

1. Preparation

  • Do prepare the job description and person specification for the role carefully
    • Job description: why the job exists – its main purpose and objectives, tasks and responsibilities
    • Person specification: experience, qualifications, expertise/knowledge, skills/abilities and behaviours sough
  • Do ask yourself: what is essential and what is just desirable? Are all the “requirements” actually necessary for the role I am trying to recruit for?

2. Advertising

  • Don’t just consider individuals recommended by existing staff – advertise internally and externally to get access to the most diverse pool of talent
  • Don’t forget your employees on maternity/parental leave or other extended absence – they may want to apply for the role
  • Do consider how best to reach your intended audience – have things moved on since you last recruited someone for this role?
  • Do make sure the words in your advert could not be construed as being discriminatory

3. Applications

  • Do use one standard/consistent approach to ensure all candidates are on a level playing field
  • Do be prepared to make reasonable adjustments to the application form and process (but note that the duty to do so is not anticipatory in nature – you don’t have to try to predict in advance what adjustments might be required)
  • Do be careful what you do with personal information obtained in the application – information obtained for equal opportunities monitoring purposes should be separated from the application before it is reviewed

4. Shortlisting

  • Do score each application against criteria based on the person specification and job description
  • Do give those doing the scoring a clear framework against which to score
  • Do consider weighting criteria according to their importance for the role
  • Do consider who will go through to the next stage – all those achieving a minimum score, the top 10/20 individuals or top 10%/20%?

5. Interviews

  • Do ask candidates in advance if they require any adjustments to be made for them in the interview process
  • Do the interviews with a colleague if possible
  • Do ask all candidates the same questions
  • Don’t ask questions about a candidate’s personal/domestic circumstances

6. Making offers

  • Do make offers conditional on pre-employment checks
  • Do ensure contracts contain an “entire agreement” clause to avoid the risk of comments or promises made verbally or in emails forming part of the contract
  • Do ask candidates to warrant that they will not be breaching another contract by accepting the offer/doing the job – this will flush out whether they have any post-termination restrictions you need to know about

7. Pre-employment checks

  • Do check they have the right to work in the UK
  • Do require references that are satisfactory to you
  • Do verification of background information – e.g. qualifications
  • Do consider if you need to do any health checks or criminal records checks – and take legal advice on this

8. Record keeping

  • Do keep careful records of your decisions throughout the process
  • Do ensure that those involved in the recruitment process don’t create an unhelpful paper/electronic trail!
  • Do explain, if an unsuccessful applicant asks, the reasons why they have not been selected – keep it quite brief and related to the personal specification

9. Do seek advice

  • Getting the recruitment process wrong can be expensive
  • Recruitment is a high risk area, particularly for discrimination claims
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.