Whilst nothing should prevent a business from hiring the best person for the job, recruitment can be a legal minefield for employers. This article highlights the potential pitfalls that an employer faces when it decides to recruit and considers the top tips for managing each stage of the process.

1. A well drafted job description will help attract the right candidate and, importantly, discourage potentiality discriminatory recruitment practices

  • Be objective and include essential requirements for the job you are trying to recruit for
  • Accurately describe the role including the specific duties and responsibilities
  • Avoid titles which show a predetermination bias for recruitment like “shop boy”, “salesman” or “waitress”
  • Avoid unnecessary restrictions such as “willing to work long hours” and “regular Sunday working” – this could amount to indirect discriminate against women (who are more likely to have the primary child care role) or Christians (who may not want to work on Sundays) unless it can be objectively justified.

2. Be careful when deciding where/how to advertise the job          

  • Beware of recruiting solely based on existing staff recommendations – this can lead to discrimination e.g. if your workforce is mainly drawn from one racial group
  • When advertising internally, don’t forget those on maternity leave, sick leave or other extended absences
  • When advertising externally, consider the implications of using certain publications, recruitment consultants or other advertising platforms.

3. Implement a standardised approach when considering job applications

  • Refer back to objective selection criteria
  • Take care if using social media – be careful what you look for and how you use it
  • Remember your duty to make reasonable adjustments (if required).

4. Adopt a fair and consistent short-listing and interview process

  • Score against the criteria in the job description – make sure you focus on the ability to do the job
  • A panel approach is preferred at interview – having two or more views encourages consistency and objectivity
  • Ask all candidates the same questions and keep a note of the answers/scores – this helps if your decision is challenged
  • Don’t ask questions about personal/domestic circumstances.

5. Consider making the offer of employment conditional on pre-employment checks 

  • Make sure you see evidence of the individual’s right to work in the UK
  • Ensure the contract contains an entire agreement clause – to avoid any comments or promises made verbally or by email forming part of the contract
  • Ask the candidate to confirm that they will not be breaching any other contract by accepting the offer.

6. Ensure that you keep careful records of your decisions

  • Create a paper trail so that you can provide evidence if required
  • Make sure you can demonstrate clear reasons for your decisions
  • Be careful that those involved in the recruitment process don’t cause problems by annotating their interview notes with potentially discriminatory comments.

7. Be prepared to provide feedback to unsuccessful applicants if requested

  • Feedback can be written or oral and should be provided in a sensitive manner
  • Any negative comments or criticisms should relate directly to the applicant’s failure to meet the requirement of the role or job description
  • Remember – a feedback response could be a critical document in an employment tribunal claim and should be supported objectively.

8. If you have a tricky issue seek appropriate advice

  • Getting the recruitment process wrong can be costly – if you have a complicated recruitment issue consider taking advice at an early stage.

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