HCS Business Matters
10 June 2010
Employment Law in the Recruitment Process
Recruiting employees is a difficult, time consuming task, where an inappropriate recruitment choice can lead to wasted costs, dissatisfied clients and disgruntled colleagues. With the average cost of recruiting a new employee being between £4,333 and £7,750 it is crucial for businesses to get it right first time and mitigate any risks associated with the recruitment process, preventing further unnecessary cost.
Recruitment is the first point at which an employer can potentially expose itself to legal claims if it fails to ensure that its recruitment processes are fair and do not discriminate against a category of potential recruits on one of the prohibited grounds.
Before examining this protection in more detail, it should be noted that nothing in the relevant legislation will prevent an employer from rejecting candidates who do not possess the necessary skills or abilities to carry out a role. Instead, the purpose of legislation in the recruitment process is to ensure that an employer’s choice of candidate is based solely on merit, with a view to enabling an employer to select the best person for any particular vacancy.
The Legislation
The current strands of unlawful discrimination are: race, colour, nationality, ethnic or national origin, sex, disability, age, religion / belief, sexual orientation, gender reassignment, marital or civil partner status and trade union membership.
The Equality Act received Royal Assent during April 2010. The Act aims to harmonise discrimination legislation by consolidating and unifying the existing protected grounds of discrimination into one single piece of legislation. It is expected that the Act’s provisions will come into force on 1st October 2010. The implications of the Equality Bill on recruitment are vast; if a finding of discrimination is made against an employer, or potential employer or future employer, then the compensation that can be awarded is uncapped and so it is recommended that employers adopt a preventative approach to recruitment and employment through following our top tips below.
HCS Top Tips for Successful, Discrimination Free Recruitment
· Make sure you draw up a detailed job description and use this to assess each candidate. If you are accused of discrimination, this hard evidence can be invaluable in demonstrating that you have objectively assessed each candidate.
· Ensure that the requirements for the job are objectively justified. For example, the ability to work long hours may discriminate against certain candidates such as candidates with children or applicants with a disability. You must be certain and be able to prove that long hours are necessary.
· Do consider where and when the interviews will take place and whether any adjustments are needed for disabled applicants or in terms of timing, whether candidates may have childcare or religious appointments.
· Take care not to use any discriminatory language in the job advert. Looking for a 'young, dynamic person' or 'Mature, experienced lady' could fall foul of both the age and sex discrimination rules.
· Make sure you have an equal opportunities policy in place and that it is applied. Applying it will involve training your employees on a regular basis. If you face a claim at the employment tribunal, this will help prove that you have taken reasonable steps to prevent discrimination.
· Don't ask questions in an interview which are potentially discriminatory, for example, questions asked of a female candidate that would not be asked of a man i.e. whether she has any plans to have children.
· It is important to give feedback following a request by an unsuccessful applicant. Failure to do so can leave the employer open to a claim that the rejection was for a discriminatory reason
Remember! Don't forget to check the candidate's right to work in the UK. An employer commits a civil offence if it negligently employs someone who does not have permission to work in the UK. The UK Border Agency have the authority to issue a penalty on employers of £10,000 for each illegal migrant worker.
13 June 2010, webeditor
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