April 2016: Employers contemplating hiring new staff should take note of guidance published by the Equality and Human Rights Commission which indicates that many people may risk being denied access to jobs due to unlawful, discriminatory advertisements. In the last year the Commission received over 100 complaints that advertisements were discriminatory. The grounds of discrimination included age (a recruitment agency stated that over 45s need not apply), disability (a hotel said that it would not offer accommodation to disabled people), sex, ethnicity and sexual orientation.

June 2015: Businesses need to be aware that pursuing a particular line of enquiry at an interview may give rise to detriment claims under discrimination law. Ideally, all shortlisted candidates should be asked the same or similar questions to allow answers to be compared and to avoid the possibility of a discrimination claim.

The Employment Appeal Tribunal has recently upheld an employment tribunal’s judgment that a nursery did not discriminate against a job applicant when it made clear at interview that its uniform policy meant that any garment worn should not present a tripping hazard. This was not a provision, criterion or practice which indirectly discriminated against Muslim women who wore jilbabs (a garment which covers the body from neck to ankle.)

June 2014: Two surveys have highlighted the risk of candidates providing fake references and the fact that a large number of staff fail their probationary periods. This suggests that employers may need to review their procedures for checking references and for assessing probationary periods. The Federation of Small Businesses and BBC1 worked together on a survey of 1,800 small firms and found that 17% had discovered candidates with fraudulent references. According to an article in The Telegraph, a survey by Spring Personnel found that almost one in five new employees fail to get past their probationary period or have their time on trial extended. Poor performance and absence were the most common reasons for a failure to pass.

This business briefing highlights the key legal issues a business needs to consider when recruiting a new employee.

Before advertising

  • Make sure all staff involved in the recruitment process have had equal opportunities training (and they continue to receive it while working for the business)
  • Draw-up the following documents:
    • a job description which sets out the title and main purpose of the job, the place of the job holder within the business and the main tasks or responsibilities of the post
    • a person specification which details the experience, know-how and qualifications, skills and abilities necessary for the job in question. The requirements can be split between those that are “essential” for the job and those that are merely “desirable”
  • Ensure that none of the requirements in either document discriminates against any groups of employees. In particular, consider whether any requirements for specific qualifications, working hours or times, travel, age ranges or dress are necessary for the job in question
  • Consider whether the job needs to be full-time or whether it is open to part-time, home working, flexible working or job sharing. If a business specifies that the job is full-time, it may need to be able to justify its decision

The advert

  • Decide whether the job should be advertised internally, externally or both
  • Consider using specialist publications, websites and agencies to target different communities, ages and sexes
  • Think carefully when writing the advert. Protection from discrimination because of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race religion or belief, sex or sexual orientation) covers all areas of employment, including job adverts. For example, avoid using language that might imply only someone of a certain age would be suitable (for example, “mature”, “experienced” or “young”)
  • Ensure any employees absent from work (including women on maternity leave or those on long-term sick leave) are informed of the vacancy to enable them to apply. Failure to do so could amount to discrimination

The application

  • Use a standard application form to enable individual applicants’ answers to be directly compared against the selection criteria more easily and help avoid potential unlawful discrimination claims
  • Draw up a shortlist using the same criteria used in the job description and person specification. Every applicant should be marked against the same criteria to help avoid any potential unlawful discrimination claims
  • If a business is making redundancies, it must consider applications for suitable vacancies from employees selected for redundancy ahead of external applicants. Women selected for redundancy while on maternity leave are entitled to be offered a suitable alternative vacancy (where one is available) in priority to other potentially redundant employees

Pre-employment health questions

  • In most cases, a business is prohibited from asking potential recruits questions about their health (for example, businesses should avoid asking questions about an applicant’s sickness absence record)
  • However, there are some circumstances where a business is entitled to ask health-related questions. For example, asking an applicant for a job in a warehouse whether they have any health problems that may prevent them from lifting or handling heavy items. Businesses can also check whether an applicant has any special requirements it needs to take into account when making the arrangements for interview, such as wheelchair access

The interview

  • Think when and where the interview should take place. For example:
    • check whether the interview venue has access for disabled candidates
    • holding an interview during a religious holiday could discriminate against applicants from that particular religion, or
    • candidates with children may require the interview to be conducted at a particular time
  • Ideally, all shortlisted candidates should be asked the same or similar questions to allow answers to be compared and to avoid the possibility of a discrimination claim
  • Avoid asking questions about a candidate’s personal life unless they are directly relevant to the requirements of the job (for example, it is unacceptable to ask a female candidate whether she plans to have children)
  • Keep a paper trail throughout the process to demonstrate how the business reached its decision to select the successful candidate. This should include:
    • selection criteria
    • notes on the short listing process
    • interview questions
    • notes of panellists’ assessments of the interviewees
  • It is good practice to provide feedback to unsuccessful candidates if it is requested. A failure to do so could indicate that a decision was based on discriminatory grounds

The offer

  • Make a written offer to the successful candidate. Consider whether to set a time limit for acceptance and specify that acceptance should be in writing
  • A business can make the offer conditional on a range of criteria, provided they are not discriminatory. For example:
    • providing satisfactory references, or
    • confirmation that the employee is free to work in the UK or has an appropriate work permit or immigration approval to work
  • Before making a job offer, ensure the applicant confirms they are not bound by any restrictive covenants from their previous job; otherwise the business could be sued by their former employer. Restrictive covenants are used in employment contracts to protect an employer’s business by restricting the activities of an employee, generally after employment has ended

The contract

  • Consider whether the contract should be permanent or for a fixed term. If a business decides that a fixed-term contract is appropriate, it may need to justify why it reached that decision
  • Remember that an employee on a fixed-term or part-time contract should not be treated any less favourably than a permanent employee (for example, they should be allowed access to a company bonus scheme or instead receive an equivalent benefit)

Probationary periods

  • A probationary period can be included in the contract. This will enable the business to assess the employee and vice versa. It also gives it the flexibility to dismiss someone using a shorter notice period of at least one week
  • Probationary periods typically last between three to six months and can be extended with the consent of the employee at the end of the term (for example, if the employee was sick and the business was unable to adequately assess their performance, it may want to extend the period)

The content of this Business Briefing is for information only and does not constitute legal advice. It states the law as at April 2016. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this briefing.