Let’s face it. Employees come with baggage. For example, the right to claim unfair dismissal if sacked!


If you are looking for staff then before you hire an employee you might think about whether you need an employee at all.

It might be tempting to try to avoid the burden of employee status. For example, by using an agency worker or self employed consultant.

However it is not easy to avoid employee status.

An agency worker can, in some circumstances, be your employee. If you have the bargaining power you can go some way to avoiding that problem by asking the agency to itself actually employ those staff it supplies to you.

If you use the services of a “self employed consultant” remember that the label that you attach to the relationship (i.e. “self employed”) is not conclusive evidence of employment status. An Employment Tribunal will paint a picture of all relevant facts. If a person who works for you is required to attend at work personally (i.e. he/she can not send someone else in his/her place), is controlled by you and required to follow your policies and procedures then (regardless of label and tax treatments) he/she is likely to be your employee.


When hiring a new employee one of the biggest risks that you face is discrimination. Every year many employees fall foul of sex, race, religious, disability and age discrimination when recruiting.

Remember that there are two main types of discrimination - direct and indirect discrimination.

Direct discrimination is when you treat a person differently and subject him/her to a detriment because of their sex/race/disability etc. For example, if you don’t employ a woman because she’s pregnant or a man because he’s disabled.

Indirect discrimination occurs when on the face of it you treat everybody the same but you impose a provision criteria of practice that puts one sex/race/religion etc at a disadvantage. For example, if you insist on full time working you might put at a disadvantage women of child bearing age.


When advertising a new role make sure that you or somebody else in your business who understands the basic principles of discrimination signs off the advert. Make sure that the advert makes no reference to gender, no reference to fitness/agility and no references to age. It is wise to state in the advert that you are an equal opportunities employer.


In theory every applicant that you decide not to interview could allege that he/she was not selected for a discriminatory reason! You need to make sure that you have an objective selection process. The best way to do this is to ask all candidates to complete a standard application form. Please see the example attached, courtesy of Ellis Whittam.

When you have decided who to interview you should define a set of criteria that are relevant to the job and/or prerequisite for an interview. Write those criteria down and score each applicant against each criteria — recording the score at the foot of your application form.

This sort of paper trail evidences your fair assessment and selection and will be worth its weight in gold if an aggrieved applicant (whom you reject) makes a claim against you.


Once you have decided who to interview, remember that you can only employ people whom have the right to work in the UK.

The good news is that you have a defence if you carry out certain checks. You should therefore ask all people that you are planning to employ to produce certain specified documents proving their right to work in the UK.

Don’t fall in to the trap of only asking those applicants that look “foreign” for evidence of their right to work in the UK! Such conduct would constitute blatant discrimination. You must seek evidence of right to work from all new recruits.


Make sure that the people interviewing understand the basics of discrimination law and avoid questions about sex, family plans, marital status, race, sex, sexual orientation, religion and age!

Use an interview assessment questionnaire. An interview assessment questionnaire scores each candidate against several preset criteria. The person that you recruit should have the highest score. If attacked by unsuccessful applicants, the interview assessment questionnaire is then good evidence that you have not discriminated.


It is important to make sure you appoint on your terms.
You should make a written job offer that clearly states that it is subject to your standard conditions of employment.

You should also think about making your offer subject to anything else that is important to you for example, production of certificates to prove relevant qualifications, permission to work in the UK and attaining satisfactory references.

It is very important that you make sure that every employee working for you has a written and signed contract of employment. This is important to give your business maximum protection and flexibility to act as necessary for the better good of the business.

It is equally important that every employee has a well drafted employee handbook that sets out rules and policies that govern his/her relationship with the business. For example, a good equal opportunities policy can be used as a defence against discrimination claim that is made against the business.

By Mark Ellis


The information and any commentary contained in these articles is for general information purposes only and does not constitute legal nor any other type of professional advice. Neither Fresh Business Thinking nor Ellis Whittam Limited nor Ellis Whittam & Partners LLP accepts liability and to the extent permitted by law each excludes liability to any person firm or other entity for any loss which may arise from relying upon or otherwise using the information contained in these articles. If you have a particular problem query or issue you are strongly advised to obtain specific advice about the same and not to rely on the information or comments in these articles.