MOST EMPLOYERS UNDERSTANDABLY THINK they should be able to recruit any individual they want by whatever process they choose, and to a certain extent you can.
As an employer you have the right to recruit the person you think is best for the role. However, that does not mean there won’t be any consequences should your method of recruitment fail to meet the legal requirements.
Having in mind from the very beginning of the process exactly what you are looking for in a candidate, alongside your legal obligations, will help you get the right person for the job while minimising the risk to your business and reputation.
Job description and person specification
The starting point in any recruitment process is to write the job description. It is an important document for a number of reasons: not only does it give you the chance to really
focus on what duties are applicable to a specific role, it can also prevent disputes arising at a later stage as the employee will understand exactly what was expected from them since the start of their employment. It also acts as a useful way to demonstrate that you are following a fair and non-discriminatory process.
The job description should be objective, identify the main purpose of the job and set out the specific tasks that need to be completed – for example dispensing prescription drugs, providing excellent veterinary care and so on.
You should avoid making assumptions as to how the role needs to be completed. For example, do not state that the role must be completed on a full-time basis if, in reality, it would be suited to part-time working or job-sharing.
The more consideration you give to the job description and the specific duties that need to be completed, the less likely you are to make assumptions and include working that could potentially be discriminatory.
The person specification is slightly different. This should identify the skills, qualifications, experience and qualities you think the person carrying out the role (as set out in the job description) should have. As an employer, this is where you should think about what you’d like the successful candidate to have – for example a certain level of qualification or experience of a particular type of work.
Although this may seem straightforward, in reality this is commonly where businesses fall foul of discrimination laws. For example, stating that any applicant must have a degree and five years’ experience is likely to be age discrimination. This is because any applicant who graduated less than five years ago and so is likely to be younger than any applicant who graduated more than five years ago is not even going to be interviewed for the role irrespective of how valuable and relevant their work experience has been since graduating. This is where identifying “essential” and “preferable” criteria is useful.
By focusing on the specific essential requirements of the role, as well as what an ideal candidate would have but what is not essential, you should find you have a job description and person specification that helps you recruit the right person while avoiding any complaints that you have been discriminatory.
Which method you choose – web, paper, journal – may ultimately depend on the costs involved. However, the methods that are likely to cost less, i.e. relying on word of mouth and internal recruitment, increase the risk of an indirect discrimination claim being pursued as you may find you have a very narrow group of potential applicants. The wider you cast the net, the more likely you are to encourage a diverse range of applicants and reduce the risk of a complaint being made.
When preparing the wording of the advertisement, be careful not to use language that may be discriminatory. Referring back to the job description and person specification you have prepared will help reduce the risk of inappropriate language being used.
It’s worth remembering that language can often be interpreted differently by different people. For example, you might say the ideal candidate should have a “mature outlook” as the role has a lot of responsibility. You may actually mean you want someone who is level-headed and therefore able to cope with the responsibility of the role and the pressure that goes with it. However, the use of “mature outlook” may discourage younger people from applying and could seem as if your selection criteria are discriminatory.
In order to prevent mistakes being made inadvertently, have someone review the wording for you, preferably a member of HR but, if not, someone from outside of the business to gauge what their first impression of the job advertisement is.
If you decide to use a recruitment agency, you should ensure your instructions to the agency are clear and non-discriminatory. This is because you are still liable for the agency’s actions, to an extent, as instructing or knowingly helping an agency to commit an act of discrimination can result in you being found liable should a complaint be made.
Most employers require applicants to complete an application form or submit their CV for consideration.
Again, however, you should be mindful of inadvertent discrimination. For example, you should be prepared to provide forms in accessible formats (for example, large print) if an applicant asks.
You should try to ensure you apply a consistent and objective approach when considering each application. It is recommended that, where possible, more than one person should be involved in considering applications to reduce the chances of discrimination arising. However, for many businesses that simply is not practical. Where you have sole responsibility for considering applications, have measures in place to reduce the risk of selection being made based on subjective assessments.
An objective assessment should be made based on the applicant’s CV or application form, with the same criteria being applied in respect of each application, for example awarding a point for each criterion the applicant meets with those applicants who score the highest marks being invited for interview. This will help you to demonstrate that you have not been discriminatory.
It’s important to maintain the same objective perspective when interviewing the shortlisted applicants. Ideally, interviewers should be trained to conduct interviews with equality in mind, such as avoiding being influenced by stereotypical assumptions relating to an applicant. Making assumptions about an applicant’s “protected characteristic” could be discriminatory.
When arranging the interview, you should ask applicants in advance whether they have any special requirements, for example to assist them with any physical impairments. Once notified of any disabilities, you will be under a duty to make reasonable adjustments to assist the applicant so they are not put at a disadvantage when interviewed.
In the situation where you are unaware that the applicant is disabled until it becomes apparent at the interview itself, your duty to make reasonable adjustments starts at that point. For clarity, it is best to ask again at the start of the interview whether
the applicant requires any special arrangements and, if reasonable to do so, make adjustments before the interview begins.
Where possible, interview questions should be structured and based on the application form, job description and person specification. Any questions which do not relate to the employee’s ability to perform the role should be avoided.
For example, asking an applicant questions about their plans for children would not be relevant to their ability to do the job and could be perceived as you not wanting to employ a mother and which would be discriminatory. If this sort of information relating to a protected characteristic is volunteered by the applicant, interviewers should ensure they are not influenced by it.
Making an offer of employment
Having found the right person through interviews, it is time to make a formal job offer. This should be communicated through an offer letter which includes the key features of the role such as job title and salary.
If the application and interview process raised any points of negotiation, these points should also be clarified in the letter, together with any conditions to which the offer is subject.
Because you could be found guilty of a criminal offence if you employ someone who does not have the right to work in the UK, you should always make it a condition of any job that the successful applicant, having been offered the job, can prove they have the right to work (usually by showing you their passport or biometric residence permit).
Other conditions commonly applied are the job being accepted by a date, satisfactory references from former employers and, if appropriate, a criminal records check.
The core elements of the agreement between you and the successful applicant – the contractual terms of employment – can also be set out in the offer letter. However, it is better to set these out in a separate employment contract to which the offer letter refers. Any non-contractual perks of the role, such as employee discounts, are best kept separate from the employment contract.
Employment contracts, whether set out in an offer letter or in a separate contract of employment, must include some compulsory terms which are prescribed by the Employment Rights Act. These include normal working hours, normal place of work, holiday entitlement and sick pay arrangements.
Lastly, successful applicants should be given a probationary period so you can assess their performance and suitability for the role over a defined period of time. To enhance the success rate of this period, the new employee should be given objectives which their performance can be monitored against with feedback provided.
It is wise to reserve the option of extending a probationary period, should this be necessary.