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Are you breaking the law with your recruitment process?
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New research from the Equality and Human Rights Commission has highlighted that many businesses don’t fully understand what is and isn’t legally acceptable during the recruitment process. The findings, published last month, are based on interviews with 1200 employers in 5 industry sectors: food manufacturing, food service, hotels and other accommodation, computer programming and social care, which are all known to have a high number of foreign-born workers.

Unsurprisingly many of the controversial findings focus on the differences in employing UK and foreign-born workers. We’ve picked out the 5 most important ways that businesses are getting things wrong, and have explained what you can and can’t do so you don’t get caught out…

5 Things That Can Go Wrong In Your Recruitment Process…

1.     Advertising jobs

Only 39% of businesses surveyed knew that it is against the law to advertise jobs in Britain exclusively in a foreign language, unless the ability to speak that language is a genuine requirement of the job.

You commonly find this happening where businesses who employ significant numbers of foreign-born workers would prefer to hire workers who speak the same language as their existing foreign-born staff. Unless speaking that language is a genuine job requirement (and fitting in with your existing workforce would not count) then advertising the job in the foreign language on its own would be unlawful discrimination under the Equality Act 2010. This is because it would exclude UK born and other applicants for the job who don’t understand that language.

Where you have a position which requires the ability to speak another language as well as English, perhaps because of dealing with foreign customers, then you can specify this in your advert, but the advert should still be written in English.

2.     Right to work in the UK

Less than half of workplaces (45%) knew that employers must check that all job applicants have a right to work in the UK before employing them, irrespective of their place of birth.

It is 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.

Fortunately, checking whether or not people are eligible to work is usually relatively straightforward…

  • Make a conditional offer of employment – this means that it clearly states that their employment is subject to them being eligible to work in the UK
  • Request identification documents – the potential employee is required to provide you with proof of their identification which prove their right to work in the UK.  Make sure you get these before they start work or at the very latest on their first day on the job. If it’s the latter make sure that it is the first thing you do. If you need to investigate at that point you must send them home.  If you are in doubt about which documents you might need to see, you can check on the government information website.
  • Check that the documents are authentic.
  • Check that the person has the right to work in the UK – this area can be tricky – if you are in any doubt, it is best to check with UK Visas and Immigration, the relevant part of the Home Office, before letting someone you are unsure about start work for you. They also run an online service which you can use – the Employer Checking Service
  • Keep copies of the documents on your employee file – and sign the copies to say that you have seen the originals

There’s a more in depth Right to Work checklist here.

3.     Paying foreign born workers less?

More than one in 20 employers (6%) thought it was legal to offer foreign-born workers less than the minimum wage and almost one in ten (9%) believed it was lawful to pay foreign-born workers different rates from British ones.

This is absolutely not ok and would amount to discrimination if you paid two workers from different backgrounds with identical job roles differently. In addition to race, this also applies to things like gender, age, disability and any other protected characteristic under equality law. If two people are doing exactly the same job, they legally should be paid the same and every employee should be paid at least the National Minimum Wage or National Living Wage depending on their age.

4.     Hiring for literacy in English

39% of employers said that the main advantage of employing UK workers was their skills in English language and literacy, and that poor communication skills in English was cited as the most common reason for turning down applications from foreign-born workers (54%).

If English literacy and communication is a direct job requirement – for example you are recruiting for an editor or a publisher or a customer-facing role – then it is ok to advertise that you are looking for someone who can read, write and speak English fluently. However, you cannot turn down job applications on the basis of poor English literacy and communication if there is not a genuine need for this skill. It’s a potentially litigious area because many businesses will naturally require that staff members have a good grasp of the English language. So making sure that you are clear about what skills you need in your recruitment process, and that you have genuine business reasons for every application you turn down, should minimise the risk of possible discrimination claims.

5.     Hiring for positive work ethic

Two thirds of workplaces (64%) said that applications from UK-born applicants had been unsuccessful primarily due to insufficient enthusiasm, motivation and energy. This compares to 30% of workplaces who said the same of foreign-born workers.

We’d all like to hire the most enthusiastic, motivated people. So long as they are the best people for the role and you recruit on merit then you will have no problems.  But if you are obviously making assumptions about things like work ethic based on someone’s nationality then again, that can be discrimination. It’s a good idea to have a standard set of interview questions that you use for each interviewee and make notes against those questions so you have written evidence of carrying out a fair recruitment process.

Using employment law to protect your business

This research has shown that many employers have different attitudes towards British and foreign workers.  So long as you – a) safeguard against any negative attitudes and stereotypes creeping into your recruitment process, b) carry out the necessary right-to-work checks and c) always recruit on merit – then you will be fine.

It’s very important to remember that in all cases when an employer can demonstrate that having a particular skill is a genuine requirement of a role, they can hire on that basis. This would be known as an ‘occupational requirement’.  Taking into account something that is not a genuine requirement can be unlawful discrimination if it is one of the protected characteristics covered by the Equality Act

Observing a fair and thorough recruitment process ensures that you don’t fall foul of discrimination laws or immigration laws – even inadvertently. If you need a hand understanding what you can and can’t do – please do get in touch with one of our qualified consultants today or call us on 0333 444 0165.


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