Ten ways to avoid legal problems when recruiting

By: Jane Crosby

Date: 17 January 2017

Woman waiting on chair - avoid legal problems when recruitingRecruitment can be a legal minefield unless you keep your working practices under review. Here are ten ways to make sure you are recruiting within the law so you avoid costly claims.

1. Prepare a detailed job description

Before you advertise a role, make sure the job description is up-to-date, that it fits the role you are advertising and is not a generic description that has been recycled from previous ads.

If the job could be done part-time, full-time or as a job share, this should be considered and stated. As well as avoiding discrimination, it is also useful to see if the role could be amalgamated into another position thereby avoiding the costs of recruiting for another role.

2. Draft an appropriate job advert

All job advertisements are covered by the Equality Act. Employers should be careful about the content of adverts. Whether the job is advertised externally or internally, an advert cannot discriminate on the basis of any "protected characteristics" - including race, sex, disability, pregnancy and maternity, religion or age. The wording should not be discriminatory in any way - for example requesting applicants of a particular age.

3. Consider advertising internally           

Companies often fail to consider their current workforce when recruiting for a new role; with training and guidance an existing employee could be a good fit for the role. Internal recruitment can also cut the cost of employing job agencies and it encourages brand and company loyalty.

4. Be careful using tests

In the wrong hands, psychological profiling can be too prescriptive in defining a personality type and it can create an unconscious bias about what makes the perfect employee. Any test should correspond as closely as possible to the job that is being advertised. These tests could also discriminate against certain individuals so an employer must consider whether a disabled person needs more time to complete a test, for example.

5. Interviews

Make sure that all job applicants are assessed objectively and that you keep notes of your evaluation in the event that it is disputed. It may be helpful if all staff are provided with training before they carry out interviews because they may have a pre-conceived bias to recruit certain types of employees. While it is important to recruit a person who fits in with the rest of the team, assumptions should not be made about age and experience.

6. Check references

It may sound simple but businesses should make sure that all references are checked because otherwise you do not have an objective perspective on the candidate’s capabilities.

7. Job offers

Obtain advice if you are unsure about whether a written job offer contains legally-binding obligations.

8. Be careful not to mishandle feedback

It is good practice to provide unsuccessful candidates with feedback and this also reflects well on the company. If it is requested, feedback should be handled sensitively because it could be used in an employment tribunal claim. Any feedback should not be too personal or negative and it should relate to comments about the person’s failure to meet the specific requirements of the role in question.

9. Be careful when withdrawing offers

An employee may have a claim if you withdraw an offer; and even though the employee may not have two years’ continuous employment a company may risk allegations of discrimination. The withdrawal letter should therefore be carefully written.

10. Consider probationary periods

If using probationary periods, employers should gather information from objective sources before considering an employee’s suitability for a role. It may be advisable to follow a fair dismissal procedure even if there may be no contractual requirement to do so.

If you are unsure at any point, it is always sensible to seek advice before you take any action - either when recruiting or if a candidate is found to be unsuitable for the role.

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Copyright © 2017 Jane Crosby is an associate at law firm Hart Brown.