Recruitment: managing the legal risks – Part 2

6.   Interviews

  • Ask candidates if they require any adjustments to be made for them in the interview process – this could entail making practical arrangements for a physically disabled candidate or by giving a candidate with learning difficulties additional time to respond to questions.

  • A panel approach to interviews is preferable – obtaining two or more views on a candidate encourages consistency and some objectivity.  A panel is particularly important if there is a risk of a conflict of interest because a decision-maker knows the candidate.

  • Ask all candidates the same questions – such consistency places you in a good position if your decision is ever challenged.

  • Do not ask questions about a candidate’s personal/domestic circumstances.  Questions should only relate to the job and the candidates’ suitability for the job.  Ask yourself, “Why are we asking this?”

7.   Making a job offer

  • Considering making the offer conditional on some or all of the following: receipt of references that you consider to be satisfactory; verification of background information to your satisfaction; a disclosure and barring service check; provision of evidence satisfactory to you that the candidate’s nationality or immigration status allows you to undertake the position offered.

  • Ensure the contract contains an “entire agreement” clause and confirmation that the candidate was not induced to accept the offer by anything not set out in the contract.

  • Ask the candidate to give a warranty that they will not be breaching another contract by accepting the offer.  Pay particular attention to restrictive covenants which may prevent the employee from taking up work with you straight away, or may prevent them from dealing with certain clients or contacts.

8.   Record keeping

  • Throughout the recruitment process it is extremely important to ensure that you keep careful records of your decisions.  You need to create a paper trail so that you can provide evidence as to why Candidate A rather than Candidate B was selected for a position.  If you are faced with a discrimination claim, being able to demonstrate clear reasons for the decision can be critical.  Employers tend to run into difficulty when there is no documentary evidence to support a particular recruitment decision.

  • Equally, ensure that those involved in the recruitment process don’t cause problems by annotating their interview notes with comments like “just married – baby?” or “strong African accent”.

  • If an unsuccessful applicant writes to you asking for reasons why they have not been selected, consider giving them a reasonably clear explanation of why they were not considered to be suitable for the particular role.  Often giving clear reasons from the outset will make the disgruntled applicant less likely to pursue a claim.

9.   Pre-employment checks

  • Health checks – Disabled applicants should be assessed objectively for their ability to do the job in question, and not rejected because of their disability.  Under the Equality Act 2010 employers must not make enquiries about disability or health before the offer of a job is made, with some very limited exceptions such as where reasonable adjustments are needed for the recruitment process, for monitoring purposes or where the information is required for a function which is intrinsic to the job (e.g. if you are recruiting a scaffolder you could ask about the applicant’s ability to climb ladders and scaffolding).

  • Once the job offer has been made, the job offer can be made conditional on health checks, but you need to ensure that the health enquiries are relevant to the job and that reasonable adjustments are made for disabled applicants.  You need to ensure that decisions about whether or not to offer a job are not made based on the information received.  It would be discrimination to reject an applicant purely on the basis that the health check reveals a disability.

  • References – It is often sensible to follow up a standard company reference with a request for some verbal references from some people the applicant has worked with previously. Many employers now provide references which only state the dates of employment and position of the employee, which does not help a new employer make any assessment about the candidate’s suitability for the job.

  • Criminal records checks –  The general principle is that “spent” convictions do not need to be disclosed.  However, there are exceptions for certain professions (e.g. lawyers, accountants), certain occupations (e.g. financial services) and those working with children. The timeframes after which convictions become spent were changed in March 2014.  In most cases the timeframes were reduced.

  • The Supreme Court has recently said that the blanket disclosure of all convictions and cautions currently provided in response to the highest level of checks (“enhanced certificates”) unjustifiably interferes with an individual's right to respect for private life under the European Convention on Human Rights.  Ahead of this decision, the Home Office relaxed the criminal records checking system so that certain old and minor convictions no longer have to be disclosed.

  • Financial Conduct Authority checks –  When hiring people who will need to have “approved person status” to carry out their roles, the FCA and the prospective employer are entitled to ask about spent convictions and to apply for criminal records checks (at the “standard” level – which shows both spent and unspent convictions).  Failure to do so may bring into question the organisation’s procedures for ensuring the fitness and propriety of their approved persons.  One of the most important considerations forming part of the “fit and proper” test for approved persons is their honest, integrity and reputation – so a criminal record can be highly relevant.

10.   Seek appropriate advice

  • From a legal perspective, getting the recruitment process wrong can be expensive.  A successful discrimination claim brought by an unsuccessful candidate can be costly both in terms of potential compensation awarded, and management time dealing with the claim. If you have a tricky recruitment issue or reasonable adjustment request, consider taking advice at an early stage.

Click here to read part 1.


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