The Recruitment Process – A Guide for Small Businesses
Finding the right employees is crucial for the success and growth of small businesses. However, it’s important to follow a fair and lawful recruitment process that complies with employment law legislation. In this guide, we will provide you with valuable insights into the recruitment process, highlighting the key steps to ensure fairness, non-discrimination, and compliance. By following these guidelines, small businesses can protect themselves against potential legal issues and establish a solid foundation for a productive and harmonious working environment.
Equality Act 2010
The risk of an employer discriminating against job applicants exists throughout each stage of the recruitment process, and as such it is imperative that employers are aware of their legal obligations.
Employers must avoid disadvantaging applicants based on their protected characteristics, such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Indirect discrimination, which may occur through the arrangements made for job offers or the terms presented, should also be avoided.
In the specific context of recruitment, the legislation includes some narrow exceptions. An employer may have a “defence” to certain forms of discrimination where it can demonstrate that having a particular protected characteristic is a genuine “occupational requirement” for the position. Applying this exception will be atypical and a cautioned approach is advised.
Employers may also be to ask questions about protected characteristics in specific circumstances during recruitment. These include equality and diversity monitoring, making reasonable adjustments, using positive action, applying disability exceptions or when occupational requirements are applicable.
Stages of Recruitment
1. Before advertising a job role
Recruitment policy: Having a well-defined recruitment policy is highly recommended for employers. This policy should ensure compliance with discrimination laws and clearly outline the steps involved in the recruitment process. By implementing such a policy, employers can establish a consistent approach to hiring, minimize the risk of discriminatory practices, and demonstrate their commitment to preventing discrimination
Identifying the role: A useful step early on would be to identify the role you’re looking to fill, deciding the type of employee(s) your business needs – will they be full-time, part-time, zero-hours workers, contractors, etc. It would also be helpful to understand and note down what duties you want the role to fulfil, researching the going rate for such a role and determining the qualifications needed to meet the requirements.
2. Advertising a job and candidate selection
Internal and external candidates: Consideration should be given to advertising job roles both internally and externally to ensure the selection of the most suitable candidate. When adopting this approach, it is essential for employers to maintain consistency by applying the same selection procedures and criteria to both internal and external candidates.
Scope of advertising: When advertising vacancies employers should look to reach a broad spectrum of potential applicants by using a mix of advertising channels.
Job specification: Care and attention to detail should be taken when drafting a job specification. A job specification should set out genuine requirements for a role and avoid using wording which could be deemed discriminatory. An example of this includes using terms such as ‘dynamic and youthful’ prima facie discriminating against older applicants.
3. Interview Process
Making “reasonable adjustments”: Employers should not ask an applicant about their health prior to offering a job. One exception to this is where the purpose of such questions is to find out if the employer needs to make adjustments to the recruitment process to accommodate the applicant. Reasonable adjustments can include providing alternative application formats or conducting interviews in wheelchair-accessible rooms.
Selection criteria and interview stages: The interviewers conducting the interview should have a clear understanding of what skills and experience are needed and are relevant to the job. Additionally, before the interview, we advise planning selection tests where applicable, determining how candidates’ answers will be scored and how many stages of the interview process are required to assess the candidates’ abilities.
Interviewers: It is advisable, where possible, for interviews to be conducted by more than one person. This reduces the risk that a decision has been made (or argued to have been made) based on one person’s view of the applicant. This should remain the case even when an interview takes place virtually with recording facilities.
Interview questions: Interviewers should avoid asking questions which relate to protected characteristics, unless they concern an occupational requirement and are strictly relevant to the employment. Although they are often used to build rapport in ordinary social situations, questions such as “That’s an interesting surname, where is that from?” or “How many children do you have?” should be avoided in the recruitment context, because they may lead to a discussion about a protected characteristic or be misinterpreted. To assist with asking appropriate and lawful questions, it is recommended that prior to the interview a set of questions is prepared for each applicant. The interviewers should then make notes for each question, and if possible, implement an objective scoring system to assess the applicant’s response. This will introduce a degree of standardisation and objectivity and enable the interviewers to easily compare their notes/scores, limiting scope for bias and discrimination.
At the end of the interview: A good practice when approaching the end of the interview is to offer the applicant a chance to ask any questions. You should also at this stage, inform them when and how you will let them know whether they were successful or not, as well as, how they can ask any follow-up questions and how any feedback may be relayed.
It would be useful to decide whether candidates will be asked for references and if so, how many and at what point – during the shortlisting stage, when the job is offered or when the employment contract is delivered. Whilst there is no legal requirement for an employer to provide a reference for an ex-employee, if an employer does provide a reference they are under a duty to the employee and the recipient of the reference to only provide information which is true, accurate and fair, and does not give a misleading impression overall.
5. Making an Offer
Once you have selected the right candidate, offering them a job is the next step. In these circumstances, employers should make sure that the offer is made ‘conditional’ for example, upon receipt of satisfactory references, if applicable. Otherwise, the employer will be in breach of contract should they then seek to withdraw the offer on receiving unsatisfactory references. The offer should include essential details such as the job title, terms and conditions, start date, any probationary period, salary, expected hours, benefits, pension arrangements, holiday entitlement, location of work, and contact information for inquiries.
6. Carrying out required checks
Right to work checks: Under the Immigration, Asylum and Nationality Act 2006, employers must carry out prescribed right to work checks on all new recruits. This is to prevent illegal working by ensuring that anyone employed by them is not prohibited from working in the UK, or from doing the work on offer, by reason of their immigration status. You can check a new starter’s right to work in one of three ways: by using the services of an Identity Service Provider (IDSP), by using the online Right to Work Employer Checking Service or by conducting a manual document check.
Criminal record checks: A Disclosure and Barring Service (DBS) check is a check of someone’s criminal record that is typically required if a person will be working in healthcare, childcare or other regulated activities. However, the level of check required will depend on the job role to be undertaken. You can conduct a basic DBS check on all new recruits, regardless of their job role, although you must have in place a policy on employing ex-offenders to show to any applicant who asks for it. This is because, under the code of practice published under the Police Act 1997, employers must treat applicants with a criminal record fairly, and must not discriminate automatically because of a conviction or any other information revealed. A basic check will show any unspent convictions and conditional cautions.
Risks in the recruitment process – potential pitfalls
Asking an employee about their previous salary: whilst English employment law does not ban employers from asking an applicant about their salary history, it is wise to stay cautious, as the campaign for a salary history ban, ‘The Great Salary Reset’ appears to be gaining momentum.
Using social media for job adverts: Employers who place paid adverts for job roles on social media should usually avoid targeting specific audiences i.e., to a specific gender and/or age group. Unless those characteristics are an “occupational requirement” of the role such practices are inherently discriminatory.
Claim for discrimination: It is vital to highlight that with Equality Act claims, the burden of proof is reversed if the applicant proves, on the balance of probabilities, facts from which, in the absence of any other explanation, the Employment Tribunal could infer an unlawful act of discrimination.
Data Protection considerations
As much of the information provided by an applicant will be personal in nature, the Data Protection Act 2018 governs the lawful processing of this sensitive personal data.
You should make job applicants aware of how you will process their data, especially where this is not self-evident, and for how long you will keep that data for.
If information from the application form will be used for any other purpose than to recruit for a specific job, make sure that this purpose is stated on that form.
You should only seek personal information that is relevant to the recruitment decision to be made.
All applications should be treated confidentially and only circulated to people involved in the recruitment process.
It will be necessary to consider what information from the application will be retained for the successful candidate, where this should not be everything, but rather only the information that is relevant to your ongoing relationship as employer and employee.
If you retain information about candidates who were not successful, they should be advised of this, and for how long you will retain their information. They should also be given the opportunity to have information removed from your systems.
Following a structured and fair recruitment process is essential for small businesses. By adhering to employment law guidelines, employers can protect themselves against legal issues and create a work environment based on equality, diversity, and inclusion.
Ultimately, a thorough recruitment policy not only safeguards businesses from legal risks but also contributes to building a strong and reputable organization. For further advice on the law surrounding recruitment or assistance with drafting a recruitment policy for your business, contact Kalra Legal Group today.
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By Suraj Purohit.
Employment Paralegal at Kalra Legal Group