Employment Law in recruitment; the dos and don'ts when recruiting

Finding and recruiting the right candidate for your business can be an arduous process and may, in some circumstances, end in a tribunal claim from an aggrieved candidate. Our Employment Law team today discuss some of the mistakes employers may make during the recruitment process, and steps you can take to ensure the process is as fair as possible.

Don’t use discriminatory language

The Equality Act 2010 prohibits discrimination against job applicants as well as employees, and applicants can bring discrimination claims if they believe that they have been discriminated against during any stage in the recruitment process. When advertising a job vacancy it is important that the wording you use does not directly or indirectly discriminate. Avoid using wording which indicates a predetermined bias. For example, job titles such as “handy man” or “waitress” may indicate a predetermination for a specific gender.

Any job requirements or person specifications that are not genuine or cannot be objectively justified may be discriminatory. For example, specifying that a job is full-time may indirectly discriminate against women, because women generally have greater childcare commitments. You should therefore avoid specifying work patterns unless they are a genuine requirement of the job. Other examples of requirements that may be discriminatory include:

• a high degree of English literacy;
• a specific number of years of experience;
• a certain qualification without stating that equivalent qualifications are also acceptable.

Do advertise widely

When advertising for a vacancy try and reach as many people as possible. Recruitment via word of mouth or through a restricted supply route can result in you recruiting from one demographic more than any other and can mean that your workforce is less diverse than it might otherwise be.  Using a variety of methods such as job boards, social media, and newspapers can help you reach a larger, more diverse cross-section of the population. This helps ensure you are not indirectly discriminating against any specific group and gives you access to a deeper talent pool.   

Don’t ask discriminatory interview questions

At the interview stage candidates should not be asked any questions that could indicate an intention to discriminate based on a protected characteristic. Interview questions should relate directly to the job description and person specification. Questions like “Are you married?” or “Do you have children?” should be avoided, even in small talk.

Equal Opportunities and Diversity training for those involved in the recruitment process may reduce the risk that candidates will be asked inappropriate questions, and may also help interviewers recognise and mitigate the effects of their own unconscious biases.

Do make reasonable adjustments for candidates

Under the Equality Act it is unlawful to discriminate against anyone in your “arrangements” for deciding whom to offer a job. “Arrangements” is construed broadly and can include things such as:

• The application form;
• The location and time of the interview;
• The format of the interview.

You should therefore be flexible in your recruitment process and make adjustments where reasonable. These may include offering a different interview time, providing mobility aids, or accepting applications in a different format.  You may need to consider different selection methods.  Multiple choice questions or pre-prepared presentations can favour candidates who have a capability that you need for the job role but they may also cause difficulties to people who have impairments of one description or another and you may therefore need to adjust your assessment to overcome the difficulties that your methodology creates.  Some candidates will ask for questions in advance of an interview and you should consider their reasons for the request and then, if complying, you should share the questions with all candidates.

Do be careful about using Artificial Intelligence (AI) and automated decision making

Some companies may use AI to sift through applications or search candidates’ social media. While the use of new technology may make the recruitment process more efficient, employers must be aware that this technology is not perfect and can produce biased outcomes. Humans should still be the final decision makers and should be trained on how to use and interpret data produced by AI.

If you use automated decision making in your recruitment process you should inform the candidates of this and outline the process for how they can challenge decisions.  

Remember that you may find information out via social media that indicates that the candidate has a protected characteristic (photographs of their children, confirmation of their marital status, commentary that indicates they have a hidden disability, for example).  Once you know a candidate has a protected characteristic you can’t remove that knowledge and it may be difficult for you to demonstrate that your reason for not recruiting related to some other issue and was not a consequence of your knowledge.

Don’t practice positive discrimination

Many employers want to increase diversity in their workforce, and while this is a laudable goal they should be careful not to practice positive discrimination, which is unlawful. Positive discrimination involves giving favourable treatment to, or selecting a less suitable candidate, solely because they possess a protected characteristic that is underrepresented in the business. Positive discrimination should not be confused with positive action, which is a lawful method to increase workplace diversity.  

Do be aware of your obligations under the GDPR

As a data controller and processor, you have data protection obligations towards applicants similar to those you owe to employees. You must inform applicants how you will use their personal data and for how long it will be held. Candidates may also make a data subject access request which you would need to comply with as you would for an employee and could result in your having to disclose any notes taken by you during the recruitment process or any comments about candidates which have been shared on email.

You should also avoid viewing a candidate’s social media and allowing it to affect your decision unless they have consented to you using their data in this way.

Do check employees’ right to work

You must ensure that all your employees are entitled to work in the UK and any job offer should be conditional on completion of a satisfactory right to work check. If you employ someone who does not have the legal right to work in the UK you could face a civil penalty or fine.

You may be able to check a person’s right to work online if they have a right to work share code, otherwise you will need to see their original documents. The individual will need to provide you with an official document such as a passport or biometric residence permit, which you must check with the individual present. You should then make and retain copies of these documents and record the date you made the check.

If you have questions about the Equality Act 2010 or about discrimination in recruitment, contact our Employment Team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.