How does employment law affect your recruitment process?

A robust recruitment process is an important part of the relationship between employer and employee. It is also a process that has a number of employment law considerations. With the prospect of the Labour Government introducing day one unfair dismissal rights, the quality of recruitment processes is likely to become more important to employers. We set out below the key employment law areas to consider when conducting recruitment processes.

Discrimination

As we saw in a recent case, applicants are able to bring discrimination claims arising from the recruitment process. It is therefore important that employers consider the following areas:

Job adverts

A job advert should not include language that could be considered discriminatory. For example, using words such as “recent graduate” might discriminate against older applicants. Employers should use gender neutral language such as “maintenance assistance” rather than “handyman”.

There is an exception in the Equality Act 2010, whereby restrictions based on protected characteristics can be allowed if they are a “genuine occupational requirement”. In such circumstances, the employer must be able to demonstrate that the requirement is a proportionate means of achieving a legitimate aim. An example of genuine occupational requirement would be a women’s refuge recruiting only women as counsellors, on the basis that their beneficiaries are women experiencing domestic violence committed by men. It would not be a genuine occupational requirement to say that a physical role could only be undertaken by a man, on the assumption that men are physically stronger than women. 

There is a further exception for employers with a religious ethos that wish to recruit only those who are part of a specific organised religion.

Positive action

There is no requirement on an employer to take positive action, however, it is an area that more employers are considering. It is a complex area of law and we would recommend taking specific legal advice before trying to take positive action. 

In general terms, when an employer identifies that those with certain protected characteristics suffer a disadvantage, or participation is disproportionately low, the employer can take “positive action” at the application stage. The aim of positive action is to avoid the disadvantage or encourage participation, provided the action is a proportionate means of achieving a legitimate aim. Examples of positive action in recruitment can include encouraging applications from under-represented groups, such as through targeted advertising, holding open days or “taster days” which are held exclusively for the targeted group, or offering pre-application training or shadowing. 

Employers need to be careful to ensure equality in the later stages of recruitment, and should avoid in particular appointing an individual simply because they hold a certain protected characteristic: this would amount to positive discrimination, which is generally unlawful. 

Reasonable adjustments

Employers should ensure that disabled applicants are appropriately supported in the recruitment process. This will include:

• Asking applicants whether any reasonable adjustments need to be made;
• Adapting the application process to accommodate any disability, for example allowing a neurodivergent applicant to complete the application form over the phone with support from the employer;
• Extending deadlines;
• Ensuring the physical accessibility of any interview room;
• Utilising online interviews, rather than face-to-face.

Employers must be very careful to ensure that they do not automatically reject an application from a disabled employee simply because of their health condition, as this could amount to discrimination. Any decisions about the suitability of an individual candidate should be made only after the recruitment process has been exhausted, and even then care should be taken.

Pre-employment checks

Due diligence in respect of candidates, and particularly the successful candidate, is really important. It is an area that, in practice, we often see employers fall down on, particularly where insufficient time is allowed to undertake the checks before the proposed start date. Key areas to consider are:

• Obtaining references, scrutinising them, and following up with any further questions or concerns, either with the candidate or the previous employer;
• Where appropriate to the role, undertaking appropriate safeguarding checks, including DBS checks;
• Checking qualifications and/or membership of professional bodies;
• Where appropriate, obtaining a medical report or other evidence of fitness for work – employers should note the risk of disability discrimination in this situation as described above;
• Obtaining evidence of right to work – our Immigration Team are able to provide further advice in this area;
• For senior managers, check that they are not subject to the automatic disqualification rules. 

When making an offer of employment, employers should make it clear that any offer is subject to the satisfactory completion of pre-employment checks. 

Conclusion

There are a number of employment law considerations in a recruitment process. Employers should consider whether it is appropriate to have a written recruitment policy, and whether managers would benefit from specific training. Our Employment Team can assist with all stages of the recruitment process, so please do get in touch.