How do I – keep on the right side of employment law when recruiting?

It might seem like a minor offence to some, but the authorities don’t take kindly to UK businesses flouting employment law. Francesca Randle offers some solid advice to help keep recruiting managers out of legal strife.

It is unlawful to discriminate during any recruitment and selection process on the grounds of gender, marital status, race, colour, nationality, ethnic or national origins, disability, sexual orientation, perceived sexual orientation, religion, belief or non-belief, or age.

Furthermore, employees involved in a recruitment and selection process must be aware of the legislation aimed at preventing discrimination against job applicants and potential employees. They must also ensure that employees are selected solely on the basis of merit.

It might sound simple, but the law can be a minefield. Just what are the key areas you should be considering to ensure a ‘legal recruitment process’ when recruiting new staff?

In this article, what I want to do is provide a list of basic pointers to actions that employers should undertake when looking to ensure a fair and legal recruitment process. It’s not exhaustive. However, it does cover the four main areas where recruiting managers may come unstuck:

1) Writing a job specification

In writing both the job description and person specification for a certain job, care should be taken that the specified criteria do not unintentionally discriminate against certain groups.

Remember: someone with a disability may carry out a task differently, but achieve the same result. So, for instance, specifying that applicants must have a driving licence may exclude an applicant with a visual impairment or arthritis and who cannot drive as a result. Stating instead that ‘extensive travel throughout the UK to meet clients is essential’ may enable a disabled applicant to demonstrate how they will meet this requirement by using alternative methods of transport.

Likewise, asking for ‘so many years’ of experience or for specific qualifications may directly or indirectly discriminate on the grounds of age. The truth is that experience need not always be in the same type of work. Other life experiences may have demanded equivalent qualities – for instance, an applicant may have acquired an understanding of budgets through running their home.

Unless it is essential and objectively justifiable, setting minimum periods of experience should therefore be avoided. Do bear in mind that some applicants may have taken a career break and so may not be able to offer ‘five years’ experience of office management’. Despite this, they may still have sufficient knowledge, skills and experience to carry out the duties of the post.

The same rule applies to younger people who have the skills required, but who may not have had the opportunity to demonstrate them over an extended period of time. In other words, the rule of thumb when drawing up profiles is to ensure that any request for experience is qualified by technical and/or commercial knowledge. This also means that if the person responsible for hiring – be it you or another individual – needs to brief a recruitment agency, there will be some clear guidelines on offer regarding the nature of experience required rather than the length.

2) Advertising

Advertisements must not include any unjustifiable requirement or condition that would have the effect of discriminating generally against one group of the population in favour of another. All essential and the most important of the desirable criteria, as outlined in the person specification, must be included in the advertisement. Potential job applicants can then determine whether or not they have the necessary skills, qualifications and experience to apply.

In departments where women, minority ethnic groups, people within particular age groups, or people with disabilities are under-represented in a similar post to that being advertised, consideration should be given to advertising in magazines, newspapers and websites that are targeted at specific groups.

Consider your language very carefully, too. Going back to the question of experience, there are a number of phrases you can use in favour of the old chestnuts.

‘Demonstrable experience’ might be replaced with ‘interacting at a X level’ and ‘proven experience in…’ could easily be altered to ‘management of X people across X sites’. Similarly, ‘experience of multi-disciplinary teams’ can often act as a good substitute for ‘in-depth knowledge of… ‘.

Language that should be avoided at all costs includes words like ‘young’; ‘lively’; ‘trendy’; ‘mature’; ‘energetic’; ‘fast-paced’; ‘dependable’; ‘experience-driven’ and ‘reliable’.

Remember, too, that images are equally as important as language. With that in mind, people images must be chosen and used carefully so as to ensure a wide mix of ages.

3) The short-listing process

The process of short-listing involves each applicant being assessed objectively and consistently against the essential and desirable criteria outlined in the person specification. What it shouldn’t do is to assess each candidate against one another. It is vital that new criteria are not introduced at this stage and that arbitrary criteria, which could be deemed to be discriminatory, are avoided. Key examples here include:

Applicants over/under a certain age. This is direct age discrimination and could indirectly discriminate against women/men
Married women. This is direct sex discrimination
Women with children. Again, this is direct sex discrimination
Handwritten applications. Remember, this may be linked directly to a disability
Applicants with poor handwriting. Again, this may be linked directly to a disability
Typewritten applications. These, too, may be linked directly to a disability
Applicants who have been on employment schemes run by the government. Whether an applicant has been on an employment scheme is not relevant to the short-listing process; applicants should only be excluded from the short-list if they do not meet the selection criteria
Applicants who have not been employed for a long time. This is direct age discrimination and may constitute indirect sex discrimination because it may have a disproportionate effect on women who have taken a career break. It may also constitute disability discrimination as an applicant with a disability may have had a long period of absence from work due to his/her disability
Applicants with unusual names. This is simply not relevant to the short-listing process and may constitute race discrimination
Applicants who seem ‘over qualified’. There could be a legitimate personal reason or a disability-related reason for a change of career or a seeming ‘backtrack’
Periods of inactivity. Again, these may be linked directly to a disability
Voluntary work and life experience. Disabled applicants may have gained invaluable organisational and creative problem-solving skills in response to their experience of a disability
Applicants with a poor level of English or where English is not their first language. If this is not an essential requirement for the job, it may constitute race discrimination
Applicants from certain geographical areas of the country. This is not part of the selection criteria and would be discriminatory if it was applied
Non-European Economic Area (EEA) applicants. Some non-EEA applicants have a legal right to work in the UK. Having said that, the successful applicant will be asked to evidence his/her right to work in the UK prior to commencement of employment

4) Principles of interview questioning

In advance of the date of the selection process, members of the selection panel should decide what questions will be asked at the interview. These questions should be based on the requirements outlined in the person specification for the post. The panel should avoid asking candidates questions relating to the following, which could be deemed to be discriminatory:

Marital status
Occupation of partner
Domestic arrangements
Whether the candidate has or intends to have children
Ethnic origin/country of origin
Sexual orientation
Trade union activities
Political or religious beliefs
Age

If a candidate volunteers this type of information, it must not form a basis for selection decisions.

What the law means to you

The success of any organisation is reliant on having the right people in the right positions. With this in mind, effective recruitment practices within a legal framework are essential.

A recent Chartered Institute of Personnel and Development (CIPD) survey estimated the average cost of filling a vacancy per employee at 3,950, rising to 4,625 if the associated costs of labour turnover were taken in to account. The same survey indicated that 85% of organisations were reporting recruitment difficulties, which included a lack of specialist skills and required experience. Hiring and retaining the right people in the present recruitment climate is therefore essential.

It is well worth investing time and energy at the recruitment stage as it is likely to take far longer to ‘manage out’ a new employee who soon demonstrates that they have not lived up to all their application form or interview suggested.

Inevitably you want to avoid being dragged in to legal action that could prove costly not only in financial terms, but to your reputation as an employer of choice. Quite simply: it is essential to understand your legal position as an employer and adhere to specific legal requirements when recruiting new employees in to your organisation.