The key issues for you to consider are:
Discrimination and the Equality Act 2010
Protection from discrimination under the Equality Act applies to nine ‘Protected Characteristics’;
- Pregnancy and Maternity
- Gender reassignment
- Marriage and Civil Partnership
- Religion or Belief
- Sexual Orientation
It is unlawful to discriminate against a candidate in the recruitment process. In particular you must not discriminate against or victimise a person:
1. In the arrangements you make for deciding to whom to offer employment.
An example could be the format of the interviews, the way the advertisement is worded, the job description etc.
It is possible, although fairly unlikely, that someone could pursue a discrimination claim based on the arrangements even if they have not applied for the job. They would have to show that they would have applied for the role but did not do so because of discrimination in the advertisement or within the information they were provided.
2. As to the terms on which you offer employment.
An example could be offering a female candidate a lower salary than a male candidate for the same position.
3. By not offering the candidate employment.
For example you do not offer a candidate the job because they are pregnant.
4. You must also ensure that you do not harass a person who has applied for a job with you.
Positive action and occupational requirements
While discrimination in employment is generally prohibited, in certain circumstances an employer may have a defence to an act of discrimination that is otherwise unlawful.
There are occasions when a genuine occupational requirement may allow you to stipulate certain things in relation to the protected characteristics. For example if you need a female actress for a role then it is permitted to limit your advertisement and/or person specification to women only.
If you are unsure as to whether your vacancy would fit with the exception you should seek advice that is specific to your situation.
Where you are taking positive action to address a problem of persons of a particular characteristic being disadvantaged, having different needs or are disproportionately under-represented in your organisation you will be able to justify the action and avoid a claim for discrimination. For example a particular ethnic minority is under represented in your work force you could take positive action to encourage and recruit candidates from that particular minority, as long as what you do is proportionate.
There is no obligation to consider positive action when recruiting.
Discrimination by agents
It is important to note that if you use a recruitment agency to undertake the recruitment for you and they behave in a discriminatory manner you may also face a claim in the Employment Tribunal in addition to the recruitment agent, as they have been acting on your behalf. It is crucial that your instructions to the recruitment agency are clear and in writing to avoid any misinterpretation.
Any reputable recruitment agency should have their own equality policy in place and it is advisable that when deciding which agency to use that you ask to see their policy to ensure it aligns with your own policies and ethics.
You will also have liability for the actions of your employees, and therefore it is crucial that anyone who is involved in the recruitment process is properly trained, and at the very least they should have training in respect of the Equality Act. This training should be refreshed on a regular basis.
I offer specific Equality and Diversity training for managers at various levels, from a one hour summary to a full day training course, at very reasonable rates. If you would like more information please send me an email to email@example.com with ‘Equality and Diversity’ in the subject line for more information.
It is also worth noting that the publishers of a discriminatory job advertisement on your behalf may be found liable for discrimination.
Data protection issues
Candidates for employment with you will provide you with sensitive personal data about themselves and accordingly any data that you hold and process will be covered by the Data Protection Act 1998.
Helpfully the Information Commissioners Employment Practice Code provides guidance on your obligations in respect of candidates and the recruitment process.
Key points to consider about data:
- You should make job applicants aware of how you will process the data that they supply about themselves and how long you will keep it for.
- It will be necessary to consider what information from the application will be retained for the successful candidate. This should not be everything, only the information that is relevant to your ongoing relationship as employer and employee.
- If you retain information about candidates who were not successful they should be advised of this and how long you retain the information. They should also be given the opportunity to have information removed.
Statutory Codes of Practice
In addition to the Equality Act you should also consider the Equality and Human Rights Commission, Employment Statutory Code of Practice which contains best practice in regards to recruitment at chapter 16. By doing this you will lower the risk of issues arising.
You can find a copy of chapter 16 of the code here.
The key things to take from the code are:
a) You should have a wide pool of candidates;
b) Follow a clear and objective selection process;
c) Be open minded in your selection and not make assumptions about candidates.
Evidence of decision making
In the event of a complaint by a candidate the best defence is to have clear and documented reasons for the decisions that you make in the recruitment process.
For this reason you should ensure that each stage of the process is written down and in particular the decision-making process should be clear and objective.
Evidence of decision making in the recruitment process should start at the point that you decide that you need to recruit with the creation of a person specification and job description which should be referred to throughout.
It is not essential to have selection criteria, but it is advisable to have something which is linked to the person specification and job description which can be used to easily and objectively score candidates.
Notes from the interviews and any subsequent discussions that take place between interviewers should be documented and retained for a minimum of three months’ following the decision being communicated to the candidates.
Starting the recruitment process – Job description and person specification
A person specification is crucial to identifying and recruiting the correct candidate for your business. Without this how do you know what skills and experience you are looking for?
The person specification is different from the job description in that it describes the qualities, experience, knowledge and skills that you want for the role. It should be relevant to the role and focus on what is required for the role in order to avoid discrimination.
You should take care not to include any health requirements in the specification as this can amount to direct discrimination against someone who is disabled. In any event it is illegal, except in specified circumstances to ask questions about health or disability before the offer of employment, and therefore it is best practice to avoid reference to health or disability until after the decision has been made.
The Job Description will flow from the person specification and should be an accurate description of what is required in the role. What are the key duties and responsibilities of the role?
Starting the Recruitment Process – Advertising the vacancy
Any advertising that you do for a vacancy will be covered by the Equality Act and therefore this should be considered carefully when preparing the advertisement wording.
If you use recruitment agent they should be made aware of your equality policy and any communication with them should be clear on your requirements of them.
I would be happy to have a look at your advertisement wording if you would like some reassurance, please email me at firstname.lastname@example.org.
Finding the right candidate – Application forms or CVs
However you decided that candidates should apply for the role you should ensure that you do not inadvertently discriminate in the application process.
It is recommended that you have a standardised process for all candidates, whether they are external or internal. This will make an objective assessment of the candidates easier and should ensure that you obtain the information that you need to make the right decision.
If you have to ask questions on an application form about any of the protected characteristics you should ensure that you include a clear explanation as to why this information is needed, and an assurance that it will be treated in strictest confidence.
When putting together your application process you may also want to consider reasonable adjustments to the process that could be made for disabled candidates.
For example, consider how you would deal with an enquiry from someone who is blind. What methods would you use to communicate the job specification and description? How would they be able to provide the information you require to assess their application?
Finding the right candidate – Equal opportunities monitoring
Monitoring of applicants is permitted as long as the information is not used to make a decision about recruitment of a particular candidate, or not.
You will often find that employers include a separate equality form or a part of the form which is is separable from the main application. If it is your intention to ask questions about candidates age, religion, race etc. then this information should be stored away from the application and should not be viewed by those making the recruitment decision. This will help to avoid any implication that this information affected the decision making process.
An additional safeguard would be to make the equality monitoring information anonymous. This way you will gather the information you need to monitor but without the risk.
Finding the right candidate – the sift and short-listing
The initial stage is to sift the applications so that only the candidates with your desired skills and experience reach the short-listing stage.
It is advisable to go back to your person specification and job description and create a set of criteria for your initial sift.
To reduce the risk of discrimination or implication of discrimination you should wherever possible have more than one person involved in the sift and short-listing.
There are a number of ways in which you can short-list candidate including, tests, group interviews, and one to one interviews.
Whatever method of short-listing that you use, you should ensure that you make any necessary reasonable adjustments for disabled candidates. This could include:
- Providing written instructions in an accessible format.
- Allowing extra time to complete the test.
- Permitting the assistance of a reader or scribe during the test.
- Allowing a person to take an oral test in writing or a written test orally.
Finding the right candidate – Interviews
As with the sift and short listing stage you should be clear on the criteria and scoring that you will use to decide on the right candidate at the interview.
Those who are carrying out the interview should take note to ensure that they and the other interviewers:
- Recognise when they are making stereotypical assumptions
- Apply a scoring method objectively.
- Prepare questions which are relevant and important for the role
- Avoid questions that are not relevant to the requirements of the job.
It is good practice to ask candidates before the interview if they require any adjustments. This should also be repeated before the interview starts.
Once you have decided upon your preferred candidate it is advisable to give feedback to the unsuccessful candidates whom you have interviewed. The feedback should be considered before being given and care should be given in what is said as the reasons for their being unsuccessful.
Found the right candidate – Make them an offer
The offer should be made in writing and it should contain the following information:
1) Job Title
2) Hours (full time / part time)
4) Start date
5) Whether the offer is subject to the receipt of references
6) Details of any specific negotiations between you
Offers of employment should always be made conditional on receipt of references, which are satisfactory to your business. This way no employment contract exists until the satisfactory reference is received.
It is also important to follow up on references from previous employers to ensure that they are genuine and that the information supplied by the candidate is correct.
The legal status of an offer letter
The offer letter can contain all of the employee’s contract terms if you wish, and this will effectively become their contract.
Alternatively you can issue a separate contract document and merely summarise the offer terms in the letter.
If you plan to provide a separate contract then you may wish to wait until the employee is about to start work, or until satisfactory references have been received.
Permission to work in the UK – Legal liability
As an employer you have a legal obligation to ensure that your employees have the right to work in the UK. It is important that you make necessary checks, such as asking to see the employee’s passport and/or work permit. It is not just sufficient to check these documents but to keep a record that you have done so.
Under the Immigration, Asylum and Nationality Act 2006 it is a criminal offence to knowingly employ an individual who does not have permission to work in the UK.
It is also a civil offence to behave negligently in employing a person who does not have permission to work in the UK and you can be punished by a penalty of up to £20,000 for each individual employee who does not have the right to work. If, however, you are able to show that you complied with the requirements to make checks then you will not be liable for the fine.
To avoid any implication of discrimination it is advisable to make it routine practice to obtain identification evidence and evidence of the right to work in the UK from all staff.
I hope that the information provided will assist you in recruiting the right staff for your business without incurring legal liability.
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