By Beth Brierley, solicitor with Riverview Solicitors
Finding the right candidate to join your business can be difficult. However, a fair and proper recruitment process can make the task easier and may help avoid problems down the line. This article outlines our seven steps for selecting the right person and takes you through shortlisting, interviews, tests, selection, verification, dealing with unsuccessful candidates and maintaining proper recruitment records.
Step 1: Compile a shortlist and invite applicants for interview
Draw up a shortlist, objectively matching the criteria of the job specification to the competencies, qualifications and skills of each applicant and guarding against general assumptions based on age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Beware of discrimination “by perception”. For example, rejecting the application of a white applicant because they have a foreign-sounding surname and you mistakenly think the person is black would be direct race discrimination.
Keep a record of the criteria you have used in the shortlisting process and send courteous letters to unsuccessful candidates. Remember that disabled applicants may require assistance to attend the interview or participate in the selection process (for example, a ground floor interview room or an adapted keyboard). Your letter of invitation should ask the applicant to let you know whether they need any such assistance.
Step 2: Conduct interviews
Prepare for the interview: Make sure that all interviewers are fully trained in interview techniques and are aware of the provisions of the Equality Act and data protection legislation.
Take care with the questions asked: Remember that a discrimination claim can be brought by an individual who has not been employed at all, but who feels that his or her failure to be selected is due to such discrimination. Avoid questions and comments that are irrelevant to the job and could appear as evidence of discrimination, for example:
• questions about marriage, pregnancy, family responsibilities or childcare arrangements;
• questions about caring for the disabled; or
• comments about age.
Step 3: Conduct selection tests
Psychometric and other assessment tests can be powerful tools in the selection process. They include:
• personality questionnaires;
• ability tests; and
• work sampling.
All tests should be used in conjunction with the interview, never in isolation. Anyone administering or scoring a test should have received appropriate training.
Step 4: Make the selection
Try to make your selection as soon after the interview as possible. Base your decision on an objective assessment of each candidate’s competencies against the job specification, selecting the person who is the best match. It may be helpful to use a structured scoring system. Retain any assessment or score sheets. If your decision is challenged under the Equality Act by an unsuccessful candidate, your records will be evidence of an objective procedure.
Step 5: Undertake verification/pre-employment checks
Verification: You are allowed to make reasonable efforts to check the accuracy of the information given by the applicant, provided the applicant is told what the verification process will be and you receive signed consent from them. For example, when you need to see a copy of a certificate that the applicant is unable to produce or you may have to check that the applicant is registered with a professional body.
Pre-employment vetting: You should only make further enquiries about applicants when there are specific and significant risks to the company or to others or where there is a legal requirement to do so. Pre-employment vetting should not be carried out routinely and only successful applicants should be vetted, with their written consent.
Pre-employment health checks: Applicants should only be asked to undergo a medical examination or test when there is an intention to appoint them and the examination is necessary and justified to:
• determine the applicant’s fitness to undertake the work;
• meet any legal requirements; and
• determine whether the applicant is eligible to join a pension or insurance scheme.
Criminal records: Under the Rehabilitation of Offenders Act, offenders are allowed to treat certain offences as “spent” after a rehabilitation period (from six months to ten years) has passed. They may therefore answer truthfully “No” to a question “Do you have any criminal convictions?” If however, the sentence is more than two and a half years in prison, the conviction never becomes spent.
There are a number of important exemptions from the Act, where it is lawful to ask about an applicant’s full criminal record, including spent convictions, and to reject an applicant on these grounds. In some cases, for example where the work involves close contact with vulnerable groups, including children, criminal record checks are mandatory. Exemptions from the Act include those who:
• work in regulated activity with vulnerable groups, including children;
• are involved in healthcare, pharmaceutical products or the legal profession;
• are engaged in banking or the provision of financial services; or
• are affected by issues of national security.
The Government has established the Disclosure and Barring Service (DBS) from which, at the request of a prospective employer, a prospective employee can obtain information relating to their criminal record, including spent convictions. The subject of a DBS check must be at least sixteen years of age.
Only ask for standard or enhanced checks if a candidate has successfully passed the shortlisting stage and is to be made an offer of employment.
In March 2013 the DBS launched an online update service for checks on an applicant’s criminal record and suitability to work in regulated activity with vulnerable groups. Once a DBS check has been carried out, an employer will be able to check online to confirm that it is still up to date and that no further information has been added. There will be a small fee for this service.
Step 6: Inform unsuccessful interviewees
Unsuccessful interviewees should receive a prompt and courteous letter. A polite and gentle let down will only enhance your reputation as an employer.
Step 7: Keep recruitment records
Recruitment records should not be retained for any longer than is necessary. However, unsuccessful applicants who feel they have been discriminated against in the recruitment process have three months in which to bring a claim before an employment tribunal.
To be able to defend a discrimination claim, you are advised to retain all recruitment records, including application forms, test results and interview notes for twelve months, to allow for any extensions in the time limit agreed by the tribunal.
Applicants do have the right of access to the notes taken at their interviews and may well exercise this right if they feel they have been unfairly dealt with and are considering a claim for discrimination. Make sure that any notes you take are accurate, relevant and objective.
Further information about this and other topics can be found by registering for free on the Riverview Law website: www.riverviewlaw.com and you can follow them on Twitter @RiverviewLawSME.
Beth Brierley is a solicitor with Riverview Solicitors