The problems start before you even take them on

There are not many pieces of legislation which impact directly on Recruitment, however there are a number of standard procedures that are used to reduce the risk of a successful claim in an Employment Tribunal by a disgruntled unsuccessful candidate.

The problem is that these standard procedures can reduce the amount of information available to the recruiter, so when considering which procedures to adopt you will need to measure the risk (for example costs) you face from an Employment tribunal against the reduced value of the recruitment process. (More on this later).

DIRECT LEGISLATION AFFECTING RECRUITMENT 

A)     Unfair dismissal (Employment Rights Act 1996)

If the previous incumbent left the job because of redundancy, you may create a situation where the very process of replacing them gives rise to a claim for unfair dismissal. It will be necessary to ask yourself the following questions:

i)                    Was the post previously held by someone who was made redundant.

ii)                   Has the situation that created the need for a redundancy substantially altered.

iii)                 Is the job fundamentally different from the previous post.

iv)                 Did the previous incumbent waive their rights to claiming unfair dismissal by way of a compromise agreement.

Once you have the answer to these questions you will be able to determine the risk posed by appointing a new member of staff.

B)      Working time legislation, Minimum wage, Health and safety at Work Act

 When designing the job for which you are recruiting make sure the terms of employment comply with the above legislation. If they do not you open yourself up to investigation for example by the HMRC if the wages paid are below the National Minimum Wage. The likelihood of this is small however in high publicity industries like media and sports the chance of bad publicity increases the risk

C)      Rehabilitation of Offenders Act 1974

 When assessing somebodies suitability for the job you can ask questions about their previous criminal convictions however you cannot take into account (indeed the applicant does not need to tell you) about any convictions that are “spent”. There are certain exceptions to this:

i)                    You are recruiting for an “exempt” profession e.g. Dentists, Lawyers, Trust managers, GPs, Nurses or officers of HMRC.

ii)                   The nature of the work being done  e.g. occupations working in Bail hostels, Children’s homes, abortion clinics, care homes and courts

iii)                 The questions asked are for a particular purpose e.g. to assess someone’s suitability to work with children, in areas of National Security, or to manage stewards at premiership football matches.

There is a long list of exemptions and if what you are recruiting for is covered by one of these the applicant has to provide details of all their criminal convictions regardless of how long ago they took place. This does not mean you cannot employ somebody with a conviction that is spent, merely that you are entitled to know about them.

D)     Equality Act 2010

This acts defines certain protected characteristics that you are not allowed to discriminate against other than in very specific circumstances. The protected characteristics are :- race, disability, gender, gender reassignment, pregnancy and maternity, religion or belief, marriage or civil partnership, sexual orientation or age.

This means providing interview or assessment facilities which allow people to apply for the job regardless of the above characteristics or association with the above characteristics.

 E)      Contract Law

When carrying out a recruitment exercise it is important not to offer the job to someone before the process is complete. A verbal offer of employment, if accepted, forms a contract and if it is subsequently withdrawn can lead to a claim for breach of contract or even a claim that the withdrawal was a form of unlawful discrimination under the previously mentioned legislation as people try to rationalise why an offer has been withdrawn.

 F)      Immigration and Asylum regulations

You must ensure that you do not employ someone who is not entitled to work in this country whilst at the same time ensure you are not setting different standards for applicants that could be seen as Race discrimination under the Equality Act 2010. For example if you set standards for selection that only apply to applicants from non EU countries they could proportionally affect non-white applicants more than white applicants. The rules on this change regularly so you should check the website www.ukba.homeoffice.gov.uk when commencing a recruitment exercise.

PROCEDURES ADOPTED TO PROTECT YOU FROM SUCCESSFUL CLAIMS

 As stated at the beginning of this paper, the procedures you adopt when recruiting new staff will depend on your needs as an employer and which risks you want to avoid during the process. However there are certain basics that should be covered.

1)      Define the vacancy and what type of person you want to fill that vacancy from the start in terms of the skills and experience you need.

2)      Take steps to ensure that you comply with the immigration rules.

3)      When shortlisting use the same criteria for all candidates and select anonymously on the basis of skills and experience

4)      If interviewing for a vacancy allow for people with protected characteristics to compete on a level playing field (for example do not conduct interviews on Good Friday as a Christian may claim that they were barred from attending due to religious observance and hence excluded from the job.

5)      Use a set of questions that you ask all candidates, this does not mean you cannot ask additional questions to get a better view of the candidates abilities

6)      Avoid questions at interview which could be used as evidence of discrimination e.g. “Are you intending to start a family?”, Where do you practice your religion?”, “how do you balance holding a full time job when you care for a disabled child?”. These are generally not job related and although somebody may have been unsuccessful for perfectly legitimate reasons, if they were asked questions like these at interview the burden of proof is on the employer to show that the questions they asked were important. If you cannot answer this satisfactorily a Tribunal can (and frequently does) see that as evidence of discrimination.

7)      Before confirming an appointment check references if possible. If you decide not to employ someone on the basis of a negative reference, the burden is on the previous employer to show that the reference was factually correct.

GENERAL COMMENTS

Above all use common sense. If you are interviewing for a premiership footballer it is unlikely that you will need to provide wheelchair access to the interviews.

There has been much debate as to whether it is it is acceptable to ask for dates on an application form as it could lead you to work out the age of the applicant. Whilst there may be some justification in law for this view, if you are appointing someone to a job that requires a lot of post appointment training there is no point in asking someone to interview who has had 10 different jobs, none of which lasted more than 6 months.

Also whilst it is a generally held view that you should not appoint someone unless you are absolutely sure of their suitability, you do have the first few months of their employment (up to a total of 24) to get rid of them if they are not suitable and not face a claim for unfair dismissal. However I would always advise you do this at the beginning of the appointment as having a poor performer on your staff is not a situation you will want to put up with for long.

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