An employer's guide to recruitment

Getting recruitment right is important to employers for a number of reasons but the two main priorities are likely to be making sure the right person is selected to the role and complying with the law.

Please see our Recruitment Policy example.

General considerations

Equal opportunities

The Equality Act 2010 is the main area of legislation that links into recruitment. This Act provides that an organisation must not discriminate against someone on the basis of a “protected characteristic”:

• In the arrangements it makes for deciding who to offer employment to;
• In the terms on which the employment is offered;
• In deciding not to offer employment; and
• By harassing a person who has applied for employment.

(For more information on Equal Opportunities generally, you should refer to our Guide to Equality and Diversity.) It is important, therefore, that there is an understanding of the Equality Act 2010 by all those involved in the recruitment process. The employer will be liable for any discriminatory acts by its employees in the recruitment process unless it can demonstrate that it took all reasonable steps to prevent the act from happening. Further, it is discriminatory for a person to give a third person instructions to discriminate, for example, where the employer instructs an agency only to provide applicants who are male and between the ages 30-50.

In order to be able to defend a claim, the recruitment process must be properly documented. This includes keeping records of the short listing process, notes of the questions asked at interview and answers given, records of any selection exercises and any notes supporting the recruitment decision.

Data protection

As part of the recruitment process, an employer will be provided with personal information on potential applicants, some of which may amount to sensitive personal data. Applicants should be made aware of how the information they provide will be processed.

No more information should be obtained than is necessary and if sensitive personal data is to be obtained, specific consent needs to be given for the processing of that data. For more information on Data Protection, see our Guide to Data Protection and also the Information Commissioner’s Code of Practice.

Advertising a role and selecting candidates

Preliminary steps

Where a requirement to recruit arises, e.g., because someone has recently left or new work is coming into the organisation, the first step is to decide what the new role is to look like and draw up or amend a job description and person specification. This is the time to reflect on what the role will be going forward and it may be an opportunity to change some aspects of an existing role.

The job description should set out the main duties and responsibilities of the role, allowing sufficient flexibility for the employee to carry out other duties which over time may be required. To avoid discrimination, the employer should be able to justify each duty and responsibility and also not overstate any requirement.

The person specification then should identify the skills, knowledge and experience required to carry out that role. Unless there is a Genuine Occupational Qualification, it is unlawful for an employer to require an employee to have attributes that may exclude those with protected characteristics, so asking for a “young energetic” salesperson may discriminate against candidates on grounds of age and possibly disability.

Any requirements set out in the person specification must be capable of justification should they potentially indirectly discriminate against persons with protected characteristics. For example, a requirement that a person has experience of a role or type of working could indirectly discriminate against women returning from time away from work to bring up a family and also young people. Instead it would be better to look at what particular skills are required as these may have been gained in a different working or social environment. Requiring employees to be flexible in their hours of work or insisting that they work full time (unless justifiable) may discriminate against women and/or disabled applicants. It is important to note that for disabled applicants, the duty to make reasonable adjustments also applies if the arrangements or premises put the disabled person at a substantial disadvantage. Remember that justification of your requirements needs to be robust and more than just desirable.

As of 6 April 2011, it will no longer be acceptable for an organisation to not consider applications from persons who are 6 months off their 65th birthday or older than 65.

Once put together, the job description and person specification will then form the basis of the recruitment process.

Advertising the vacancy

There are many ways of advertising a role including through agencies, via internet sites, in local newspapers and on boards outside the Company’s premises. Vacancies should be advertised widely and openly. A company that recruits simply through word of mouth or internal advertising may be at risk of discrimination from under-represented groups and if this is the only approach used, the Company must be able to objectively justify it. One justification for internal advertising may be where an organisation is going through a redundancy exercise and in order for that exercise to be fair; they must consider alternative employment for the “at risk” employees.

Where agencies are used, the employer should satisfy itself that the agency will not unlawfully discriminate. Applicants should not be encouraged to send personal information to unidentified organisations, e.g., a P.O. Box number where the recruiting company is not identified.

If an organisation has employees on fixed-term contracts, it has an obligation under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 to inform them of all permanent vacancies. It can be sufficient to advertise all vacancies on a Company notice board or intranet provided the fixed-term employees have access to this.

Proper thought must be given to the advert itself to avoid any wording that might indicate an intention to discriminate. For example, the Equality and Human Rights Commission (EHRC) in its Code of Practice recommends using gender neutral terms such as “waiting staff” as opposed to waiter or waitress.

Any conditions or provisions in the advert should reflect the job description and person specification and also be capable of objective justification, should they potentially discriminate against a group with a particular protected characteristic. Also, adverts should not discourage applicants with disabilities from applying simply because adjustments may be required.

Applying for the role

The EHRC Code recommends that employers should use a consistent application process. Requiring applicants to complete an organisation’s application form, rather than rely on candidates CVs, encourages consistency as the form sets out the information that the employer is looking for to consider a candidate’s suitability for the role.

Where using application forms, the forms should only seek to gather information necessary for determining who may be selected for the role. Whilst it might be relevant once a person is recruited to a role, it is unlikely to be necessary to ask for details of a person’s marital status, nationality or number of dependants at this stage of the recruitment process. Furthermore, to do so puts an organisation at risk of an allegation of discrimination should the candidate not be successful in their application. From a data protection point of view, if the successful applicant will not be required to fulfil certain functions, for example, drive as part of their role, asking for details for instance of any motoring offences is irrelevant.

Except for certain roles, candidates are not required to disclose details of any convictions that are spent under the Rehabilitation of Offenders Act 1974. For details of when a conviction is spent, see the Home Office website.

Pre-employment health questionnaires

It was not unusual for application forms to ask applicants about their current and past health. The Equality Act 2010 makes it unlawful to ask questions (either of the applicant themselves or a third person about the applicant) relating to an applicant’s health before offering work or where the employer is not in a position to offer work, before putting the applicant in a pool of people from which it will select a person once work is available, e.g., a pool of casual workers. This means that employers can no longer ask candidates whether they have particular health problems and it also means that they cannot ask candidates about their sickness absence record, even though they are not going into details of the reasons for the sickness.

Where pre-employment health questions have been asked, the EHRC may bring enforcement proceedings against the organisation. An applicant cannot bring a claim to the Tribunal but if they are not selected for the role, they may use the fact that they were asked pre-employment health questions as support for a disability discrimination claim.

Once an offer is made, it can be made conditional on a satisfactory medical or response to a health questionnaire subject to an employer not discriminating on the basis of such a response.

Only in the following circumstances may an employer use health questions prior to an offer being made:

• To ascertain whether the applicant will be able to comply with a requirement to undergo an assessment or if there is a duty to make reasonable adjustments to enable the applicant to undergo the assessment;
• To ascertain whether the applicant is able to carry out an intrinsic function of the role; or
• For monitoring purposes.

Even where the organisation is permitted to ask questions, they must not go further than is necessary for their particular purposes.

An organisation should be prepared to make application forms available in alternative formats for disabled applicants in order to comply with the duty to make reasonable adjustments. Alternative formats would include Braille, audio tape, etc.

Many organisations include monitoring forms with the application form. It is good practice for an organisation to carry out equal opportunities monitoring. However, where such information is gathered, it is important that those responsible for reviewing the application form as part of the initial selection process do not have access to the monitoring form to reduce the risk of unlawful discrimination.

The short listing process

After all applications have been received it is sensible to short list for the next stage of the recruitment process. This may take many forms including, sifting against criteria, carrying out interviews, selection tests and assessment centres.

To avoid bias and remove the risk of discrimination, it is important that a consistent process is applied. The short-listing process should be by reference to the job description and person specification with any decisions to shortlist made by more than one person. It is prudent to make a brief note as to why each applicant has been unsuccessful, should the decision be subject to later challenge.

When arranging interviews or tests, it is important not to put any particular group at a disadvantage, e.g., avoid dates that coincide with religious festivals.

Whatever the whys and wherefores of the interview being a good recruitment tool, interviews are still the main method of selecting candidates for a role. When arranging interviews, an organisation should be flexible in terms of the timing of the interview and be prepared to make adjustments if necessary. It is sensible when inviting a candidate for interview to ask if they require any adjustments at the interview itself.

The interview should be conducted by at least two people, again to avoid bias but it can also be useful for one to act as note taker. Questions should be geared around ascertaining how closely the candidate matches the job description and person specification, with the same main questions being asked of each candidate as far as possible, subject to any follow up questions.

It is important that those involved in the interview process are sufficiently trained to know what questions should not be asked. It is inappropriate to ask questions relating to health (subject to the specific exemptions stated above), plans to have a family, how a candidate will deal with being managed by a younger employee etc. Such questions could give rise to a discrimination complaint.

Where other methods of short listing are used, for example, assessment centres, the people responsible for carrying out the assessment must be suitably trained and be familiar with the organisation’s equal opportunities policy. The tests should relate to the candidate’s ability to do the job and should not discriminate. Candidates whose first language is not English or who are disabled may require more time to carry out the test. Other reasonable adjustments may need to be considered for disabled candidates.

Making an offer

At the end of the process when a suitable candidate is found for the role an offer of employment is then made. The organisation should keep details of the unsuccessful candidates, e.g., application form, interview notes etc for a period of time. We would suggest a minimum of six months, in case there is a claim of discrimination.

The EHRC suggests that it is good practice for organisations to provide an unsuccessful candidate with feedback, where this has been requested. A Tribunal may draw inference of discrimination where an organisation has failed to provide feedback on request.

Once an offer is made to a successful candidate and it is accepted, the contract is formed and at the point of making the offer you should make sure all the key terms are expressly stated. This would usually be the essential elements such as the job title, pay, hours of work, status (e.g. temporary, fixed term, etc.) and whether the offer is conditional. It is not unusual for contracts to be conditional on, for example, satisfactory references and/or satisfactory medicals and/or proof of the right to work in the UK and/or security clearance or background checks. However, this needs to be made clear prior at the point the offer is made.

It is advisable that the offer is made in writing so that there can be no dispute as to the terms. If there are additional documents that apply, e.g. a handbook or other policies which include contractual terms, these should all be included with the offer documentation. See our EXAMPLE OFFER LETTER. It should be noted that anything written in the job advert or said in the interview can form a term of the employment and, therefore, those involved in recruitment should be made aware of this to avoid making any commitments at these early stages that cannot be honoured.

References

References are often used as a way of verifying an applicant’s suitability for the post. The EHRC advises that when seeking references for this purpose, a copy of the job description and person specification should be provided with the reference request.

Usually there is no obligation on an existing employer to provide a reference, but if they choose to do so, they have a duty to take reasonable care that the reference is accurate and not misleading. This duty applies both to the applicant and to the person they are supplying the reference to.

Right to work in the UK

It is a criminal offence to employ a person who does not have the right to work in the UK and, therefore, as part of the recruitment process, an employer must ask employees for evidence that they are able to work in the UK. All applicants should be asked for this proof to avoid any claims for race discrimination. If the employer is able to show that, prior to the applicant starting work, they have seen and kept or copied particular documents showing that the applicant is able to work in the UK, the employer will have a defence should it transpire that the employee is not entitled to work in the UK. For details of what documents are required for proof that a person can work in the UK, see complying with the law.

Medical reports

Although pre-employment health questions cannot be asked of candidates, except in limited circumstances, an offer of employment can be made conditional on a candidate returning a satisfactory medical questionnaire or a satisfactory medical report being obtained. If a report is to be obtained from the candidates own GP, then the Access to Medical Reports Act 1988 must be complied with AMRA CONSENT FORM. In any event, as health information is sensitive person data, it must be processed in accordance with the Data Protection Code. See our GUIDE TO DATA PROTECTION ACT.

The practice of making offers conditional on satisfactory medical information should not be confined to disabled applicants as this could give rise to a disability discrimination claim. If medical information is obtained for a disabled applicant which suggests that their impairment may have an effect on their ability to carry out the role, the employer then has a duty to consider whether there are any reasonable adjustments that can be made to remove the disadvantage.

Criminal records

Subject to some exceptions, candidates are not required to provide details of any “spent” convictions. Under the Rehabilitation of Offenders Act 1974, convictions are spent after a particular period of time, the time varying with the nature of the conviction. Some convictions however will never be spent. See a table setting out the specified periods when convictions must be declared. Candidates for certain roles can be required to provide details of spent convictions, these roles include solicitors, barristers, nurses, doctors, dentists and chartered accountants.

It is a criminal offence for an employer to employ someone to work with children or vulnerable adults where that person has been barred by the Independent Safeguarding Authority. The employer must know or reasonably believe the person is barred. The vetting and barring scheme that was put in place has been reviewed and its recommendations are now incorporated into the Protection of Freedoms Bill. The definition of regulated activities is amended by the Bill and the circumstances when an individual will be included in the barred list will be more limited. Nevertheless, there will remain a duty on a regulated activity provider not to employ someone to work with children or vulnerable adults where that person has been barred and the obligation remains for the provider to find out whether a person is barred before engaging them. We will include information on our website as the Bill progresses.

Withdrawing the offer of employment

If the successful candidate is unable to satisfy one of the conditions, then the employer may withdraw the offer on the basis that the condition has not been met. There may be other circumstances where an employer wishes to withdraw an offer, for example where intervening events mean that the organisation no longer has a need for the role.

The offer may be withdrawn at any time prior to it being accepted. This does not mean that the applicant cannot try and claim discrimination and, therefore, the organisation should be able to provide evidence of the reason for the withdrawal of the offer and show that it was for a non-discriminatory reason. If the candidate has accepted the offer, then the contract needs to be terminated in accordance with the terms of the contract. Assuming that the employee does not have one year’s continuous service and there are no automatically unfair reasons for the dismissal, the applicant would not be able to claim unfair dismissal, but again, the termination may need to be explained if a candidate claims the termination was for a discriminatory reason.

The start of the employment

Induction

It is sensible to have some kind of induction procedure at the start of an employee’s employment. This can serve as an opportunity to introduce the employee to the organisation’s culture, employees, processes and policies and procedures. The induction is a two way process; it is a time to welcome the employee into the organisation but also to get the employee up to speed with key aspects of the organisation. It may also be an opportunity to provide the employee with training on particular aspects of their role.

It is sensible that the induction process is used to take the employee through certain key policies and procedures. These include the health and safety policy, harassment and bullying policy, equal opportunities policy, absence policy and disciplinary and grievance procedures.

Special consideration may be given to certain employees. For example, those who are new to work, such as school leavers and those who have been outside of the workplace for a period of time. Inductions with employees with disabilities might include consideration of whether any special arrangements are required.

Probationary periods

Many organisations choose to have a probationary period at the start of an employee’s employment. This should be stated in the contract. The aim of the probationary period is to assess an employee’s suitability for the role.

Probationary periods tend to be either 3 or 6 months but can vary in length depending on the role and how long it will take to assess an employee’s suitability. The employee’s performance should be reviewed throughout the probationary period. If an employee does not achieve the required standard before the probationary period expires, then the employer could agree with the employee to extend the probationary period, in which case this should be clearly stated in writing, or terminate the employment in accordance with the terms of the contract, provided there are no discriminatory reasons. See our Guide to Probationary Periods for further information.

Positive action

The Equality Act 2010 allows employers to voluntarily take positive action measures to improve equality for people who share a protected characteristic but the action taken must be proportionate. Where the employer reasonably thinks that people who share a protected characteristic:

• experience a disadvantage connected to that characteristic, then they may take positive action to overcome or minimise that disadvantage;
• have needs that are different from the needs of people who do not share that characteristic then they may take action to meet those needs; or
• have disproportionately low participation in any activity compared to others who do not share that protected characteristic, then they may take action to enable or encourage such persons to participate in such activity.

Examples of positive action include targeting advertising at specific disadvantaged groups. In April 2011, an additional provision comes into force on positive action. This will allow employers to select for recruitment or promotion a person with a particular protected characteristic where the employers reasonably thinks that persons with that particular protected characteristic are under-represented or at a disadvantage. In this situation where the employer has other employees and the person to be selected is “as qualified” as the others in the recruitment process, they can be selected in preference to other candidates.

It is important to note that the Equality Act 2010 does not, however, permit positive discrimination. The Government has published a guide to positive action.