Establishing a selection process that is organised, fair, and objective is crucial to the formation of a strong workforce. A well-implemented process may also help employers avoid costly claims—potentially harmful to an employer’s reputation—related to unlawful discrimination and the misuse of data. This instalment of Employment Law Essentials sets out the key legal and practical issues for employers to consider as part of the recruitment process.
Employers should keep comprehensive records which will allow them to justify decisions taken in relation to applicants and to respond to any complaints of discrimination. It is helpful to keep in mind that any document relied upon or referred to during the recruitment process may be disclosed in future court or employment tribunal proceedings. In deciding how long to keep documents after a recruitment exercise, employers should balance their need to retain such documents in order to justify decisions against their obligation under the Data Protection Act 1998 (DPA) to keep personal data no longer than necessary.
An employer should ensure that those involved in the selection process receive training on the employer’s recruitment and/or equality policies. Applications received should be carefully monitored to avoid missing important information relating to candidates’ disability or health requirements. This will aid in complying with the employer’s duty to make reasonable adjustments (see Unlawful Discrimination below).
Under the DPA, job applicants are data subjects and provide personal data to employers who, in turn, process that data. Accordingly, an employer should keep in mind the following considerations: (a) making job applicants aware of how the information they supply will be processed and how long it will be held (e.g., via a statement in the job advertisement); (b) seeking only information from applicants which it can justify as being necessary to make recruitment decisions; and (c) carrying out only pre-employment checks which are proportionate to the risks faced by the employer and are likely to reveal information that would have a significant bearing on employment decisions.
Employers have an obligation not to discriminate against job applicants under the Equality Act 2010. Discrimination means treating an applicant less favourably because of one of the nine “protected characteristics” (which include age, disability, race, religion, sex, and sexual orientation). Discrimination may occur when an employer treats one applicant less favourably than another because of a protected characteristic (direct discrimination), or when the employer applies an apparently neutral provision, criterion, or practice (PCP) which leads to an individual or group of individuals with a particular protected characteristic being treated less favourably than others (indirect discrimination). Employers also have a positive duty to make reasonable adjustments for disabled applicants, such as providing and accepting information in accessible formats, making auxiliary aids available, or adjusting an employer’s premises where reasonable. Failure to do so may amount to discrimination.
Once a job vacancy is identified, the employer should consider drawing up a detailed written job description and a person specification. These documents should use appropriate and objective wording in order to avoid any claims or suggestions of direct or indirect discrimination. The job description should focus on the job’s main purpose and main tasks, and the scope of the role. The person specification should focus solely on the required skills, knowledge, experience, aptitudes, and personal qualities.
In carrying out background checks, employers should comply with the DPA’s requirements, which include that background checks must be lawful, necessary, and fair and that information must be obtained from a trusted source. In particular, a candidate should be informed of the background checks that the employer proposes to carry out, and for certain types of checks, the individual’s consent should be obtained. It also means that background checks should be proportionate to the requirements of the job. For example, an education check should be proportionate where specific qualifications are required to perform the role.
Keeping a paper trail for every decision of the recruitment process is recommended. This enables employers to justify each decision, shows the process by which decisions were reached, and demonstrates that the selection decision was based on objective evidence of the candidate’s ability to do the job.
An employer will wish to convey its offer to a successful candidate by way of an offer letter, which more often than not will be conditional (on requirements such as receiving a satisfactory reference). If the offer letter is later followed by more detailed terms of employment, it is important that the terms contained within both documents be consistent, and the offer letter should state that it is subject to the terms of the contract of employment. If a conditional offer is made, the contract will not actually be entered into until all of the conditions have been satisfied. As such, the employer can withdraw the offer of employment at any time before the employee has accepted the conditional offer (which could not have been accepted until all of the conditions had been satisfied). However, the employer should ensure that the reason for withdrawing the offer is not unlawful, such as a discriminatory reason based on information discovered through background checks.
An employer may consider checking a prospective employee’s current or previous employment contract to determine whether the candidate is subject to restrictive covenants from his or her previous employer. Such restrictions may prevent the employee from commencing work elsewhere for a limited period of time. The employer should also seek confirmation from the prospective employee that he or she will not take confidential information or intellectual property belonging to any former employer.
Once the employment offer has been accepted and the applicant commences employment, the employer should consider how best to settle the new employee into his or her new role. Larger employers may run organised inductions (for example, where a number of employees, such as graduates, begin work at the same time), whereas smaller employers may have more informal induction processes in place. Employers may also consider whether to utilise probationary periods for the purpose of assessing new employees.
If you have any questions or would like more information on the issues discussed in this instalment of Employment Law Essentials, please contact any of the following Morgan Lewis lawyers: