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Expansion and recruitment of new staff members to your organisation can be fraught with potential legal pitfalls. Employers must balance finding the best person for the job whilst considering the legal and equality obligations that weave through the heart of fair recruitment practices.
As an employer, it is essential to be familiar with your employment law obligations, not only to existing members of staff but prospective staff members who you may decide to hire, or not as the case may be. A full understanding of the law is essential to avoid discrimination claims and reputational damage. There are some key issues which should be risk assessed ahead of even placing an advertisement, whether that be in written published format or online on a social media channel:-
- Job advertisements
It is essential that the wording for a job advertisement is clear and succinct, drawing reference to the candidate’s required skills and qualifications, whilst remaining accessible and visible to all. It is important that the wording of the job advertisement does not indicate any bias towards a certain age, marital status, gender, ethnicity type or religion. An example of this might be a statement containing wording such as “young and enthusiastic.”
It is also important to set out in the advertisement how you are committed to being an equal opportunities employer so as to entice applications from a diverse range of people. This includes offering and providing access to those who may require it, whether it be due to a disability or otherwise, to all stages of the recruitment process. By way of an example, a candidate with dyslexia may struggle with a written test-based interview and an adjustment might be to offer the same interview questions in a verbal format instead.
- The shortlist process
There should be a transparent screening process to create a shortlist of candidates whom you wish to invite to interview for the role. If this is not done consistently and transparently, this could also lead to discrimination claims and potential reputational damage. AI, whilst very helpful as a tool in its sorting ability, should be treated with caution or sufficiently double-checked manually given it is based on algorithms, which leaves scope for exclusion of a particular demographic albeit unintentionally.
It is important to have a job description already drafted at the point of your search for a candidate, ensuring it’s selection criteria is non-biased and objective. It should not imply a bias towards a particular set of demographics or certain academic backgrounds.
- Data Protection
Be mindful of your continued obligations under GDPR and ensure that you are only collecting personal data which is necessary to be retained for the recruitment process. Have a data retention and destruction policy to establish how long data on unsuccessful candidates is held. Please remember that any person can make a subject data access request, whether they are an employee or not.
- You’re Hired!
You have successfully navigated the interview process and carefully chosen the candidate whom you wish to hire. The offer of new employment carries contractual implications on an employer to the successful candidate, whether that offer was made in writing or verbally. If the offer is conditional upon references, it is important to make this clear to the candidate in question. Failure to do this could expose you to the risk of a discrimination claim or reputational damage in the event you needed to later withdraw the offer due to the references falling short.
It is also a day 1 right to be issued with written terms and conditions of employment and failure to deliver on this can result in financial implications in the form of a statutory award which will be automatically applied should an employee challenge the same. Written terms should set out the particulars of employment, including a probationary period if any and the agreed terms of employment, including place of work, hours of work, salary, holiday entitlement, pension entitlement, sick leave and notice period.
- References
There has been case law where a former employer has been sued by a new employer for misrepresentation where they have provided a glowing character reference for a candidate, from which the new employer has placed reliance and hired the candidate, spending thousands of pounds on recruitment, training, and equipment costs. The case law details how a candidate commenced work with the new employer, working inconsistently with the portrayal of that individual in the reference from the former employer. The individual’s performance was so poor that the new employer had to go through a costly and lengthy disciplinary process to terminate the employment. The new employer then claimed for their financial losses against the former employer for acting in reliance of the reference they had written for that candidate at the time.
It is best practice and an expected commonplace amongst companies to only write a factual reference for an existing employee to their prospective new employer who wants to hire them. This will avoid or minimise the risk to your business of being presented with a claim for misrepresentation.
- Sexual Harassment
There were recent changes to the law on sexual harassment in the workplace, which not only applies to workers and employees but also to third parties too. This could also apply to job candidates coming to your business to attend an interview or discussing the role over the telephone or by Teams call. Employers are under a duty to take reasonable steps to prevent harassment in the workplace and it is highly advisable to carry out a risk assessment ahead of any recruitment activity so as to keep your workforce safe and to ensure that there are clear records of the steps you have taken to prevent any sexual harassment from occurring during the recruitment process.
Recruitment is an area which can expose an employer to the risk of a discrimination claim, which can sometimes be difficult to disprove. Care should be exercised, together with knowledge of the wider scope of employment law and the principle of equal opportunities. In doing so, this will attract the best talent as it is common knowledge that people want to work for a reputable organisation. It will also serve to minimise your exposure to the risk of a discrimination claim or reputational damage which can ensue from such a claim.
If you have any queries or questions or need some support in planning your next recruitment activity, then please contact our employment law team at Pickerings Solicitors. We are here to help.
Contact Joanna Robson on 01827 317092 or Jrobson@pickerings-solicitors.com
