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Getting the recruitment process right is vital to ensure that you not only select the most suitable candidate for the vacancy but also do so without falling foul of the applicable law.
The Law
The Equality Act 2010 is intended to eliminate discrimination from all workplace situations, including recruitment procedures. The Act protects people from being treated less favourably because they have a protected characteristic. The relevant protected characteristics in employment are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race (including ethnic or national origins, colour and nationality); religion or belief (including lack of belief); sex; and sexual orientation.
In particular, the Act requires employers to make reasonable adjustments to accommodate the needs of disabled job applicants. This could entail adapting recruitment and selection procedures, such as providing the job application form in large print for someone with a visual impairment, or making sure there are no physical barriers that make it difficult for a disabled candidate to attend for interview.
The Act also contains positive action provisions, which mean that it is not unlawful for an employer to recruit or promote a candidate who is of equal merit to another candidate if the employer reasonably believes that the candidate has a protected characteristic and that people with that characteristic are under-represented in the workforce or suffer a disadvantage connected to that characteristic.
Section 60 of the Act prohibits the use of pre-employment health questionnaires prior to a job offer being made. Employers are not prevented from asking job applicants any questions about their health but can only do so for specific purposes, such as deciding whether they need to make any reasonable adjustments to enable an applicant to participate in the selection process or whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned. Once a person has been offered a job, whether this is an unconditional or a conditional offer, the employer is permitted to ask appropriate health-related questions and require a medical assessment where this is normal practice for all applicants.
All employers must comply with the minimum hourly wage rates for workers as provided for by the National Minimum Wage Act 1998. Also, if you are intending to employ young people, there are restrictions on the number of hours they can work and their working conditions.
It is an offence under the Asylum and Immigration Act 1996 to employ anyone who does not have permission to live or to work in the UK. Advice on how to check that a prospective employee is eligible to work for you can be found on the UK Visas and Immigration website.
Unless there is a specific need to check someone’s criminal record for a job, the Rehabilitation of Offenders Act 1974 provides that it is against the law for an employer to refuse to employ them because of spent convictions. The GOV.UK website provides guidance on the Act. For certain jobs exempted under the Act, for example working with children or in healthcare, employers will need to ensure that a prospective employee is cleared to do the work before they can start. Criminal record checks are now called Disclosure and Barring Service (DBS) checks and are carried out by the DBS. The DBS only issues certificates to the individual on whom a check is carried out, so employers wishing to ensure that an employee is cleared to do a particular type of work must ask to see their DBS certificate. Further information on the DBS can be found on the GOV.UK website.
On 25 May 2018, the General Data Protection Regulation (GDPR) came into force in EU member states. The GDPR requires personal data relating to criminal convictions and offences to be processed only under the control of an official authority or when it is authorised by law providing for appropriate safeguards for the rights and freedoms of data subjects.
Whilst it would therefore appear that it would not be lawful for employers to require criminal record checks as a matter of course, unless they are recruiting for a role for which a DBS check is required, the Data Protection Act 2018, which came into force on 23 May 2018 and sits alongside the GDPR, permits this by way of a derogation that allows such legislation. The Act allows the processing of criminal convictions data when it is necessary to comply with employment law obligations or rights. In order to do this, however, an organisation must have in place written policies demonstrating how its procedures on processing criminal record data comply with the GDPR, including detailing the retention and erasure polices that relate to this data.
The Act also allows employers to process criminal record data in certain other circumstances, which include where the employee agrees to this. However, the employee's consent must meet the specific requirements of GDPR.
Employers must also make sure that all personal data received during the recruitment process is managed in compliance with the GDPR.
Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is unlawful to refuse employment to someone because they are or are not a member of a trade union.
All those involved in the recruitment procedure should receive training on the equal opportunities aspects of the process and other relevant legislation.
Guidance
If the skills required to fill your vacancy are in short supply, you may need to redesign the job in order to make it a more attractive prospect – perhaps by offering a greater variety of tasks, training and development opportunities or flexible working arrangements.
The Job Itself
Clarify the requirements of the job and decide what sort of contract of employment you wish to offer. Produce a job description detailing the purpose, tasks and responsibilities of the job. A good job description not only provides the basis for drawing up a person specification but also helps with induction and training when the successful candidate starts work.
Person Specification – The Ideal Candidate
Profile the knowledge, skills and aptitudes deemed essential and desirable. Consider allocating a weighted score to each, based on their relative importance, to come up with an ‘ideal’ total score. The specification can be used later as a check list when assessing the suitability of each applicant and the candidate’s performance at the interview can be compared with the job specification’s ideal score. Take care, however, not to include unnecessary requirements that discriminate against people with a particular protected characteristic.
The Job Advertisement – Attracting the Right Candidates
It is advisable to select at least two recruitment methods in order to draw on as wide a pool of candidates as possible. Each job advertisement should be designed to attract the right candidate, concentrating on the experience, knowledge and competencies necessary for the role, but must avoid bias against anyone with a protected characteristic. For example, avoid terms that could be seen as excluding someone from applying for a role based on their age. Even requiring a certain level of experience from candidates could be seen as discriminating against someone who is too young to have had the chance to gain that experience.
The Application Form
Using a job application form makes for an easier comparison between candidates, but will not be suitable for all jobs. A form should be designed to capture the information necessary to enable an informed selection of candidates at the initial sift stage. Provide information on any selection tests that will be carried out as part of the recruitment process and whether these will take place before or at the time of the interview. Also, make it clear at what stage any references will be sought. Include copies of the job description and person specification as well as a statement of commitment to equal opportunities. Prospective applicants should be offered alternative ways of providing the requested information to guard against claims of less favourable treatment. For example, requiring a form to be filled out ‘in your own handwriting’, where written English is not a requirement of the post, may discriminate against a disabled person or someone for whom English is not their first language.
Sifting the Applications
Identify the applicants who best meet the job description and the person specification. Ideally, this process should be carried out by two or more people so that it is as objective as possible. Send a letter inviting selected applicants to attend for interview, asking them to advise the organisation in advance if they need particular arrangements to be made to accommodate them on arrival or during the interview.
The Interview
Make sure you have made reasonable adjustments to accommodate any candidate who has indicated on the application form that they have a disability.
The length and style of the interview will depend on the nature of the job, but this should be carefully planned in advance. It should be structured so that each candidate is asked the same questions and is given the same opportunities to demonstrate their suitability for the job. This and the use of a scoring system based on the person specification will make it easier to compare their performance.
If you require candidates to complete a test, this must be free of bias and directly related to the necessary requirements of the job. Any information collected during personality tests must be handled in accordance with the data protection principles laid down by the DPA.
Make formal notes immediately after the interview. These will not only help you to reach a decision as to who is the best person for the job but will also enable you to provide feedback if a candidate requests it, bearing in mind that your reason for appointing or not appointing a particular person may be subject to a challenge under discrimination legislation.
The Successful Candidate
Once you have made your decision and carried out any necessary checks, inform all applicants, in writing, of the outcome as soon as possible.
The letter to the selected candidate should set out the job title; any conditions applying to the offer; the terms (including salary, hours, benefits, pension arrangements, holiday entitlement and place of employment); the start date and any probation period; and what the candidate must do either to accept the offer or to decline it. If the letter is to be the employment contract, or form part of it, it should say so and include the main terms and conditions.
In addition, all employees, whether part-time or full-time, are entitled by law to be given a written statement setting out the main particulars of their employment, provided their employment lasts for one month or more. All the required particulars must be given within two months of the start of the employment, unless the employee is to work abroad for more than one month within two months of commencing employment. In this case, the information must be provided before the employee goes away.
From 6 April 2020, the right to a statement of employment particulars will be extended to all workers as well as employees and will also become a 'day one' right.
The Advisory, Conciliation and Arbitration Service provides free documents for use when hiring staff.
