There are a number of steps employers must take to stay on the right side of the law when it comes to recruiting employees. Much of this is to do with ensuring the process is fair and does not discriminate.
However, research carried out by the Equality and Human Rights Commission found that many businesses are unaware of what is and isn’t legally acceptable during the recruitment and selection process, and you definitely don’t want to run the risk of facing an employment tribunal as a consequence.
To help, we’ve set out the key steps you need to take in order to meet legal requirements in your recruitment and selection process.
How to comply with employment law when recruiting
1. Get clued up on discrimination law
The most important piece of employment legislation to bear in mind is the Equality Act 2010. The Act prevents employers from discriminating against employees and job applicants on the basis of protected characteristics.
It is possible to discriminate, even inadvertently, at numerous points in the recruitment and selection process, for example, when:
- writing the job description
- advertising for the role
- selecting who to interview
- conducting the interview
- determining who to hire
- writing the job offer.
With this in mind, it’s essential to keep discrimination law at the forefront of your mind throughout the process.
2. When writing the job description, ensure person specifications are a genuine ‘occupation requirement’
You should make sure that the candidate specifications you outline are genuinely required in order to perform the role.
For example, if there is no genuine need for a high level of English literacy in order to perform the role, then you should not list English literacy as an essential requirement.
Similarly, specifying that an individual must have a certain number of years’ experience is discriminatory towards younger applicants.
Challenge yourself on the job description and ensure you are only using criteria which is genuine and fundamentally key to effective performance within the role.
3. Advertise widely
Social media advertising, in particular, makes it easy to target very specific audiences, but you should be aware that by only targeting your job advert to a specific gender and/or age group, you are indirectly discriminating on individuals outside of this group.
You should ensure you choose advertising routes that will be open to a broad spectrum of people, this will remove the opportunity for indirect discrimination and will also open up the potential pool of applicants.
4. Tell applicants how their data will be used
In order to comply with GDPR, recruiting employers must notify applicants about how the information they provide as part of their application will be used.
5. Don’t use information found on social media profiles to influence your decision to interview or recruit
Be careful not to allow judgements about an individual that you’ve drawn from viewing their social media profiles to influence the likelihood of interviewing or employing them. It’s unlikely they’ve given you consent to use this information in this way and would not be a justified reason if you were challenged on your decision.
6. Check whether reasonable adjustments are needed
When inviting candidates to interview, be sure to ask if there are any reasonable adjustments that you can make to enable them to attend and fully participate. This might include a change in location, time environment, or an interpreter.
7. Steer clear of questions that may discriminate
Asking any questions about the personal circumstances of a candidate places you at high risk of discrimination claims.
For example, if you were to ask “are you planning a family?” and then not hire the candidate, it’s plausible that they could think you had based your decision on their answer to that question. And unfortunately for you, that could lead to a discrimination claim.
So, to avoid any issues like this, it’s best to steer clear of these sorts of questions entirely, unless they’re raised by the candidate.
8. Check right to work
It’s really important to check that every person you employ has the legal right to work in the UK before they start working for you.
If you deliberately employ someone who does not have the right to work in the UK, or if you don’t make the necessary checks and just rely on what the employee says to you, you are breaking the law.
The penalties are severe and can involve fines of up to £20,000 per employee, and even a prison term for deliberate and continued breaches.
When making an offer of employment, you should state that it is a conditional offer, subject to proof that the individual is eligible to work in the UK. Evidence of this right to work must be provided prior to the start date.
Read More: How to check an employee’s right to work.
9. Offer equal pay to individuals performing the same role
You must make sure that employees performing the exact same job are paid equally; You can’t pay someone less based on gender, ethnicity, age and/or other protected characteristic.
10. Take care not to recruit foreign-born workers above UK born workers on the assumption that they have a stronger work-ethic
Making assumptions about things like work ethic based on someone’s nationality could also be viewed as discrimination.
It’s a good idea to have a standard set of interview questions that you use for each interviewee and make notes of their answers so that you can clearly demonstrate the reasons for hiring them were based on evidence they provided you with rather than assumption.
11. Withdrawing an unconditional job offer could be against the law
It’s best to offer a job on condition of receiving adequate references, proof of the right to work in the UK (see above), and in some circumstances a criminal records check. If these conditions are not met, then you can withdraw the offer on these grounds. However, if you failed to include any conditions in your job offer, it would be considered unconditional and it may be deemed against the law to withdraw.
To sum up
As you can see, even with the best intentions, there are a number of ways a recruiting employer might slip up and inadvertently discriminate.
One of your best defences against doing so is to keep discrimination law in mind throughout the entire recruitment and selection process. Also make sure you document the questions you’ve asked and the candidates’ answers, so that you can evidence any decisions and, if necessary, disprove any accusations of discriminatory treatment.
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If you’re feeling unsure about your legal obligations when employing new staff, our consultants can help.