01 June 2024

Danny Done, managing director, Portfolio Payroll, considers the ways in which employers can prevent recruitment issues from the outset


Even before new recruits walk through the doors of an organisation on their first day, there’s a lot of work that has gone in to get them to that point. So, it would be wise for employers to help avoid any potential recruitment issues.

 

Advertising roles

First, make sure that the job advert is appropriately worded. A claim for discrimination can be brought by an individual even before they’re an employee. It’s important, therefore, to avoid language like ‘dynamic’ or ‘experienced’, which could be discriminatory on the grounds of age. Really consider the role you need to fill and what knowledge, skills and experience are needed. Compose an objective, clear and specific job description and personal specification that isn’t written for one sex or group only.

Then consider the recruitment process and whether it’s accessible. There’s a duty to make reasonable adjustments for individuals with a disability and this applies during the recruitment process. In the case of AECOM Ltd v Mallon, the job application had to be completed online, but Mallon’s medical condition – dyspraxia – made this difficult. Rather than completing the job application online, Mallon asked if a telephone call could take place instead. However, this was not arranged. Mallon brought a claim for failure to make reasonable adjustments which succeeded. To avoid making the same mistake, businesses should carefully consider any requests for adjustments during their recruitment process and make them, if they’re reasonable and necessary.

 

Shortlisting

Make sure that selecting the candidate shortlist is made against objective criteria, then thoroughly prepare for the interview ensuring that the questions asked aren’t biased. For example, candidates shouldn’t be asked if they’re planning to have a family or what their childcare arrangements are because this could be sex discrimination.

When it comes to the final decision, it shouldn’t be based on factors other than the candidate’s ability to do the job. For example, you shouldn’t reject the best candidate because they’re pregnant. Keep notes on recruitment decisions to show that the reason for the rejection of one candidate and the appointment of another was based on objective factors and free from discrimination.

Managers involved in recruitment for the organisation need to also be aware of the risk of unconscious bias. This is when a person is influenced by perceptions they didn’t necessarily know they had. For example, a male recruiter may be more likely to pick a male applicant over a female applicant because he thinks they would get on better. Or, when a recruiter chooses someone for a job because they went to the same university so they may have similar experiences.

In the case of Anya v University of Oxford, the applicant, a black Nigerian permanently resident in the UK, was rejected in favour of a white candidate and brought a claim for race discrimination. The Court of Appeal held that, even though the recruitment decision appeared on the face of it to be fair, that didn’t mean it was unaffected by racial bias emanating from the views of the recruitment panel on the personal and professional qualities of the job applicants.

Employers should, therefore, ensure that all staff involved in recruitment or selection receive effective equal opportunities training and, where possible, use more than one person to carry out shortlisting and interviewing.

 

Making the job offer

Once you have selected the successful candidate, the job offer should be made conditional on proof of right to work in the UK, and it’s also common to require satisfactory references.

Employers have a legal duty to prevent illegal working and can be subjected to penalties if they fail to do so. It’s a criminal offence to employ someone where they have ‘reasonable cause to believe’ that they don’t have the right to work in the UK. It can lead to the possibility of a prison sentence and a civil penalty of up to £45,000 for each illegal worker. The fine can be up to £60,000 per illegal worker for repeated breaches. To gain a ‘statutory excuse’ against the civil penalty, employers need to ensure that right to work checks are carried out in accordance with the Home Office’s checking process.

Assumptions shouldn’t be made about a person’s right to work in the UK or immigration status based on their race or nationality. A right to work check must be completed before any new hire begins employment with the organisation to ensure they have leave to enter and work in the UK. Checks need to be completed for every individual at the same stage of the recruitment process to also avoid allegations of racially discriminatory treatment.   

There’s a lot to think about when recruiting. While it can take some navigating, a well-run recruitment process should identify the best candidate, hopefully leading to a long and mutually beneficial employment relationship. 

 

This article feautured in the June 2024 issue of Professional.