Hiring a new member of staff can be a lengthy and expensive process. There’s the cost of placing the advert itself, the time it takes to sift through the CVs, interview candidates, draft contractual documentation and obtain references.
Since you’ve invested this effort the last thing you want is to fall foul of any potential legal hurdles along the way. We’ve outlined some key issues to look out for during the recruitment process.
1. The Advert
You want to make the role you’re advertising seem exciting and attractive to prospective candidates. However, you need to be mindful of the fact that the contents of advert could form part of any contract you make with the successful candidate. This means you need to be able to fulfil any promises you make on the advert. For example, it’s no use saying that the role comes with a car or guaranteed bonus if this is not the case.
Equality legislation also protects job applicants even before they’re actually employed. You should ensure that the advert does not discriminate on the basis of any protected characteristic, such as age, race, sex, disability, pregnancy and maternity, religion or belief.
Indirect discrimination is also possible in a job advert. This occurs when there is a requirement that applies to all but may disadvantage a particular group because of a protected characteristic. For instance, stating that the successful candidate has to wear a specific hat as part of the company uniform could disadvantage those whose religious demands require them to wear some other form of headwear. You also need to be mindful of where the advert is placed: advertising in a woman’s magazine could also constitute indirect discrimination.
The only exception to this is when there is a genuine occupation requirement for the successful candidate to have a particular characteristic. For instance, the job involves working with people from a particular ethnic group and the successful candidate needs to be from the same ethnic background and speak the same language.
2. Shortlisting Candidates
We strongly recommend that when shortlisting applicants, employers use a matrix to score candidates.
The scoring should be done against the essential and desirable criteria outlined in the role’s person specification, ensuring that they are non-discriminatory.
By completing and retaining a matrix you can justify why you have shortlisted the candidates you have should you ever be challenged.
3. Interview Questions
Once you’ve shortlisted your candidates, the next stage typically involves carrying out interviews. We would advise that questions are drafted based on assessing the candidates’ skills and experience against the requirements of the role.
We’d recommend keeping a record of responses to interview questions and scoring those responses so that, again, you will be in a better position to justify any decisions you make should you be challenged.
Some employers still ask off-the-wall questions such as “Which famous people would you invite for dinner?” or “Which three objects would you take to a desert island?”, thinking it will provide some deep insight into the applicant. Apart from confusing the candidate, you have no way of assessing the responses that are provided; these types of questions should be avoided.
4. Making the offer
Once you’ve selected the successful candidate, we recommend making any offers of employment subject to the receipt of references that are satisfactory to the company, so that it is the employer who determines whether a reference is suitable.
We also recommend having a probationary period for new members of staff; offers of employment should be made subject the successful completion of the probationary period.
Finally, after the offer stage, you may want the candidate to undertake a medical. In which case you may also want to make the offer subject to the satisfactory completion of the medical. If disabilities are revealed by a medical then employers are advised to consider reasonable adjustments for the employee; it’s only when these are either not possible or would not alleviate the employee’s condition that the employer may consider withdrawing an offer of employment.
You may want to ensure that your offer letters and contracts of employment are suitably worded to incorporate these recommendations.
5. Right to work checks
Before the successful candidate’s first day of employment, the employer should check that the individual has the right to work in the UK. This is done by reviewing, checking and taking a copy of a list of set documents that have been prescribed by legislation. Useful guidance can be found at the following link – https://www.gov.uk/government/publications/right-to-work-checks-employers-guide
It’s important to note that these checks must be done before the individual starts work. If you fail to make these checks and are found to be employing individuals illegally, you could face a civil penalty of up to £20,000 for each illegal worker.
If we can support you with hiring a new member of staff or any of the issues raised in this article, then please contact us on 01271 859267 or email us at office@fitzgeraldhr.co.uk.
