By Hannah Saunders, Solicitor In Keystone's Employment, Pensions and Incentives Team
Employers are becoming more aware of getting their fingers burnt when firing staff, but some still get caught out when hiring new personnel. Hannah Saunders has some tips for a smooth recruitment process.
When drawing up a job description and person specification, make sure they are relevant, reflect the work and do not discriminate. For example, do not ask for a driving licence unless the role requires driving, as this could discriminate against people with some disabilities.
By placing a discriminatory job advertisement, you could face claims from unsuccessful applicants and also from would-be applicants who were put off applying.
Think about the wording of any advertisements. For example, most of us recognise that "recent school leaver" or "mature" could amount to age discrimination, but the use of "experienced" or "senior" may also have the potential to discriminate unless they can be justified. Take care with any pictures in the advertisement and consider where it will be placed. Include an equal opportunities commitment statement in the text.
Sometimes, it is possible to rely on the fact that a characteristic is an "occupational requirement" to justify specifying it for a particular job. For example, an Italian waiter may be needed for an Italian restaurant to promote an authentic Italian atmosphere, but this is the exception to the rule and is narrowly applied.
If requested, be prepared to provide an application pack in alternative formats, such as Braille or audio-tape. Also bear in mind your obligations under data protection laws regarding the use and retention of information about job applicants.
Consider anonymising the applications before shortlisting. Where possible, shortlist against ‘essential' and ‘desirable' criteria in the job description, and make sure that you keep records. This can be used to give feedback to any disappointed candidates and also to prove that decisions were not tainted by discrimination.
The duty to make reasonable adjustments for disabled people applies at the pre-employment stage as well as during employment. Check whether any reasonable adjustments can be made to assist during the interview process and consider accessibility to the interview location.
Positive discrimination, where you might select one candidate over a better qualified candidate on the basis of his or her protected characteristic is not allowed, except in favour of disabled candidates. However, from April 2011 where there are two equally qualified candidates, it will be permissible to select one on the basis that he or she belongs to a protected group. For example, if she is female or from an ethnic minority group - this is known as ‘positive action'.
Ensure that questions asked are relevant to the role and usually centre around the job description. Avoid asking questions which are irrelevant to the job content, such as the candidate's marital or family status or health.
Pre-employment health screening is limited by the new Equality Act 2010. This restricts questions that can be asked at interview, on application forms and medical questionnaires. Asking about an applicant's health before offering a job, or relying on information obtained in that way to discriminate, for example by not offering the job, can have serious consequences.
There are some situations in which pre-employment health screening is permitted, for example when deciding whether the candidate is able to carry out a function intrinsic to the role applied for.
Right to work and criminal record checks
You need to ensure that your chosen candidate has the right to work in the UK, but must take care that the process for checking this does not discriminate racially. Also be certain that, where necessary, all criminal record check requirements have been satisfactorily completed.
Setting the terms
Remember that a verbal job offer made during interview can be binding. It is better to use an up-to-date, written employment contract and to make the offer conditional on receipt of satisfactory references. Changing contract terms later is not always easy, so it is better to get this right from the beginning. Think now about what protection your business might need later on and incorporate appropriate provisions into the contract at the outset.
The Keystone Law employment team is highly experienced in these matters and will be happy to assist you in relation to recruitment or indeed any other aspects of employment law.
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