Recruitment Best Practice from a Legal Perspective Anna Denton-Jones May 2015 navigating employment...

navigating employment law

Recruitment Best Practice from a Legal Perspective

Anna Denton-JonesMay 2015

WHY IS IT IMPORTANT ?


Primary reasons• Your aim is to find the most appropriate person for job: skills,

experience, qualities, potential

• Recruitment is expensive if you get it wrong:-– Wasted agents fees, wasted management time, wasted induction and

training– Negative effect on morale of other employees

• Good practice is an opportunity to demonstrate the culture of your organisation to potential candidates: recruitment is often about PR

• By attracting a diverse pool of people the organisation reaps the business benefits

• Often required for quality assessments such as ISO9001


Legal reasons: secondary

• Potential costs and hassle if you get it wrong:– Unlimited damages for discrimination

• Vicarious liability for agents• Personal liability

– Claim for damages for breach of contract terms– £20,000 fine under Asylum & Immigration Act (civil),

unlimited (criminal)– Investigation by the Information Commissioner if you

breach Data Protection rules

• Risk of grievances from internal candidates• Risk unfair dismissal and redundancy claims if those

selected for redundancy are not offered alternative employment that is available


Discrimination

• You are liable for discrimination – in job adverts (which might reasonably be

understood as indicating an intention to discriminate)

– directly or indirectly in the arrangements you make for determining who should be offered employment

– in the terms on which you offer employment

• You are liable for harassment taking place in the recruitment process



Job analysis: draw up job description and person specification

Determine recruitment

methods

Advertise Review applications

and shortlist suitable candidates

Selection process/intervie

w

Make offer and take up

references

InductionProbationary review


Training

• Is everyone participating in the process trained?

• Why is it important?

General good practice

• Avoid word of mouth recruitment: risks perpetuate any imbalances that exist in the status quo


Age restrictions

• It is no longer generally possible to avoid recruiting someone based on their age

• You might be able to objectively justify age restrictions if you can show you have a legitimate aim and the restriction is a proportionate means of achieving that legitimate aim eg:- training requirements of the post in question and recoupment of those costs


Person specifications and job descriptions

• Design for each job focussing on what is actually necessary to do the job– Is a quality “essential” or “desireable” or

not? Avoid overstating– Avoid language which can imply a

certain age, physical ability or cultural standards

– Take care with “experience” criterion based on time


FAQs

• Can we specify the role has to be full-time?


Advertisements

• Choose the medium carefully• 1/8 people are put off by the

language you use: use neutral language

• Include statement of commitment to equality and diversity?

• Provide a contact person/point


FAQs

• A member of our Board tells me it’s illegal not to advertise roles internally and externally – is he right?


FAQs

• Someone we dismissed (a redundancy) is now wanting to apply for a role we have advertised. Do we have to take this person back?


FAQs

• We dismissed an employee for poor attendance due to health issues. If they re-apply for a job in the future can we refuse their application or should the normal recruitment process follow? What are the implications of not allowing this person to re-join based on a very poor attendance record if they have now advised their health is much better?


Application Forms vs CVs

• CVs – risk contain too much irrelevant information?

• Remove sex, age, marital status, date of birth, school? Leave these factors to the monitoring form.

• What about qualifications and work experience?• Don’t require next of kin information at this stage• Explain checks you will make and seek permission• Trend towards competency based forms• Keep the data securely


FAQ

• We’ve been asked to provide our application form in an accessible format. Do we have to?


FAQ

• Can I talk about my disability in the interview?


Sifting

• What will your short-listing criterion be? Agree process and apply it consistently

• Do not use second hand knowledge• More than one person involved• UK National Academic Recognition

Information Centre can tell you about the equivalent qualification of non-UK qualifications www.naric.org.uk

• Keep copies for rejected candidates for 12 months (evidence to defend claims)


http://www.naric.org.uk/

Choosing the method of assessment

• Is an interview appropriate?• What about telephone interviews?• Any assessments should be equality-

proofed and capable of adjustment from a disability point of view

• How are you going to score/mark interview or assessments?


Interview arrangements

• Ask about special interview requirements after short-listing

• Be flexible about interview times

• Treat transgender candidates as the sex they are presenting themselves as at interview eg:- when showing them facilities such as toilets

• Ask if interview environment is OK


Interviews

• Mixed panels of those who have received appropriate training

• Do not ask questions about hobbies, social activities, marital status, family or personal life

• Keep notes of questions and answers: take care: the candidate can access your notes under the Data Protection Act


Offer of employment

• Care: offer and acceptance leads to a contract being formed.

• Make your offer subject to conditions: References, - Entitlement to work in the UK, CRB Checks, Medical, Proof of Qualifications, free of restrictions

• Make the terms clear (cross refer to contracts and policies and procedures) eg:- probationary period


FAQ

• Do I have to give feedback to someone who was unsuccessful?


Obligation to make reasonable adjustments for disabled employees

• Positive duty to remove arrangements which put the person at a substantial disadvantage and to make reasonable adjustments to enable the disabled person to be accommodated

• Medical questionnaire• Take medical advice


Checks on entitlement to work in the UK

• Check everyone• It is a criminal offence under s15 Asylum &

Immigration Act 2006 to employ someone who is not entitled to work in the UK

• £20,000 fine • Statutory defence if you have checked

prescribed documents• Annual checks for those with time-limited

permissions• Checking NI numbers alone is not enough


Vetting

• Intrusive so only as far as is reasonable bearing in mind the job eg:- credit check a cashier.


Employing ex-offenders

• Rehabilitation of Offenders Act 1974: if you have a “spent” conviction generally you don’t have to tell an employer about it (exceptions for specific jobs) and it would not be grounds for dismissal. Some convictions are never “spent”.

• Increasingly employers are required by customers to CRB check staff: contract drafting issues

• Policy of giving people a second chance in life: you should have a policy of doing the same. CRB recommend a policy statement


Drugs testing

• Why is it necessary? Can you justify it on Health and Safety grounds? That will defeat privacy arguments.

• Who will do it? (medical specialist)• If you have made it part of the offer:

revoke offer if fail test• Confidentiality issues


References

• Remember to take them up• Value? No obligation on an employer

to provide you with one but if they do it has to be honest, accurate and fair. Fear of challenge has diminished what people are prepared to say.


FAQ

• We offered Joe Bloggs employment and they accepted. They haven’t started yet. Can we withdraw the offer as things have changed?


Probation

• Diarise reviews and act upon potential issues

• Reserve right to shorter notice period• Reserve right to extend probation• Employee will have rights from day

one even though they can’t claim unfair dismissal until they have 2 years’ service

• Exceptions to the 2 year rule for UDnavigating employment law

Data transfer from the recruitment file to a personnel file

• Only keep that data which there is a purpose for keeping, delete unnecessary information

• Store confidential health information, references etc separately?

• IC recommends destroy after 6 months. CRE recommend 12 months.


FAQs

• What paperwork do we need to keep?

• Lawyers would argue you need to document what you do wouldn’t they? Reason: evidence to protect yourself in the case of any challenges.


FAQ

• What if I discover someone has lied during the recruitment process?


Legal Framework

Acts• Rehabilitation of

Offenders Act 1974• Asylum & Immigration

Act 1996• Protection from

Harassment Act 1997• Data Protection Act

1998• Equality Act 2010

Regulations• Part Time Workers

(Protection of Employment) Regulations 2000

• Fixed Term Employees (Protection of Employment) Regulations 2002


Further reading

• www.acas.org.uk (booklets Tackling discrimination and promoting Equality, Employing Older workers,

• www.bia.homeoffice.gov.uk (Asylum & Immigration)

• www.agepositive.gov.uk• www.ico.gov.uk (data

protection)• www.disclosure.gov.uk

(Criminal Records Bureau)• www.nacro.org.uk (employing

ex-offenders)

• www.cehr.org.uk


http://www.acas.org.uk/

http://www.bia.homeoffice.gov.uk/

http://www.agepositive.gov.uk/

http://www.ico.gov.uk/

http://www.disclosure.gov.uk/

http://www.nacro.org.uk/

http://www.cehr.org.uk/

Contact us: [email protected]

Phone 02920 533393 or 07797 545480www.refreshinglawltd.co.uk


mailto:[email protected]

http://www.refreshing/

Recruitment Best Practice from a Legal Perspective Anna Denton-Jones May 2015 navigating employment...

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