The latest ONS Labour Market Overview at the start of 2019 showed that the number of people in. employment rose yet again to another all time high of 76.1%. Which probably provides some explanation for the findings of the latest Labour Market Outlook survey from CIPD that 71% of employers are finding some vacancies hard to fill.
Many organisations continue to report difficulty in recruiting the right skills for some of their key roles and with the constant evolution of skills required in the labour market and the impact of Brexit, competition for key skills is likely to remain high. As recruitment appears to be remaining high on the agenda for many people, we thought now would be a good time to give a slightly extended bullet point guide to ensuring legal compliance and best HR practice in recruitment……
- Beware Discrimination
It makes sense not to discriminate in recruitment: by opening up employment opportunities to a wide pool of candidates you ensure access to the best talent available and, by following a clear and objective selection process, you avoid stereotypical assumptions of who is likely to be the best candidate for the job and any bias that stands in the way of selecting the best candidates for the job. A key
So, what does the law say?
You must not discriminate against or victimise a person in the arrangements it makes for deciding to whom to offer employment or the terms upon which employment is offered.
There are 9 protected characteristics in English employment law under which an individual can pursue a claim for discrimination: sex; age; race; religion; sexual orientation; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity.
The arrangements for offering employment might include the format and content of application forms; the physical arrangements, recruitment tests, location and timing of interviews and the job and person specifications.
Previous case law in this area has included people put off applying for jobs because of statements such as ‘must have had experience of working shifts’ when age or situation (such as being a home maker) has prevented them from having that experience but they would be perfectly able to work those shifts going forward; a disabled person unable to attend an interview on the first floor of a building with no lift and people with English as a second language being refused employment on a production line in a factory after failing written examinations including questions on Dickens and nursery rhymes. Some of these are extreme examples but illustrate the importance of thinking about the importance of anything printed throughout the recruitment process.
Over the latest few years the topics of diversity and inclusion have featured heavily in politics and the media, with employers urged to ensure that workforces reflect the diversity of the communities in which they operate. Employers may increasingly be considering positive action, for example to improve their diversity or gender pay gap. Positive action is permitted under s158 of the Equality Act 2010, which provides that an employer may take steps to encourage applications from under represented groups or, where there are two equal applicants (a tie breaker situation) prefer an applicant from an under-represented group. A consideration of diversity and inclusion should be an essential part of any recruitment exercise but caution should be exercised when using positive action. In the recent case of Furlong v Chief Constable of Cheshire Police ET2405577/18 a first tier tribunal made clear that preferential treatment of a particular group of people (for example women) risks being categorized as unlawful discrimination if there is not a tie breaker situation. The EHRC offer useful guidance on this subject at https://www.equalityhumanrights.com/en/advice-and-guidance/employers-what-positive-action-workplace
A claim can arise at any point from the advert for a job being put out to press if a would-be claimant is deterred from applying for a role because of an advert. A claim can be brought against the individuals carrying out the recruitment process or against those on whose behalf they were acting, this includes a recruitment agency situation.
In order to minimize the risk of a claim ensure that training is carried out for those people tasked with recruitment within the business and if you are using an agency you have clear instructions/terms and conditions about what you are looking for in a recruitment process.
A prudent employer will not only follow a structured process when recruiting but will also record the decisions that they make so that if the worst does happen and they get a claim, they have the paper trail to justify their decisions and successfully defend any action.
- Know the vacancy
To recruit successfully you need to know the duties that you need to be carried out and the skills needed to complete those tasks, the best way to understand this is to prepare a job description and person specification for the role.
When preparing a job description and person specification a good rule of thumb is to think about the ‘what’ and the ‘why’, i.e. what do you believe you need and why do you need it, then apply that logic to the role that you are trying to fill. In all of your recruitment literature you should be careful about including questions that might directly or indirectly identify and/or discriminate against one of the protected characteristics listed above.
A job description should be a clear and concise document written in plain English that describes exactly what will be required of a person employed in the job to which you are trying to recruit. It should include a broad list of all of the duties associated with the role, which should be realistic rather than a wish list of every conceivable job that could ever potentially arise!
- When writing a person specification care should be taken to match any requirements that you set out strictly to the requirements of the role.
- As far as possible, a person specification should use criteria that can be tested objectively. For example, attributes such as “leadership” should be defined in terms of measurable skills or experience. In the absence of exceptional circumstances, reference should not be made to health requirements as to do so could deter a potential disabled applicant whom, with reasonable adjustments, would be able to carry out the requirements of the role.
- Plan your recruitment process
Once you have a thorough understanding of the role that you are recruiting to, you should put together some form of plan or at least checklist of the steps that you will follow to recruit. Your checklist should include details of:
- Methods of applications: CV or application form
- Where to advertise
- The process to be used for shortlisting candidates: a paper sift, testing, interviews
- A strategy for informing applicants of the outcome
It is important that whatever process you follow complies with the requirements of the Data Protection Act 1998 (DPA). Job applicants should be made aware of how you will process the information they supply, for example via a statement in the job advertisement (which is likely to be that it will be held on computer or manually to assist with the administration of the recruitment process) and how long it will be held for.
Internal or external?
If you are advertising internally you need to ensure that you open up any opportunities to everybody eligible for the role, including those that are absent from work through long term sickness or on maternity.
External recruitment is expensive and time consuming but does open up the widest pool of talent. From a legal perspective, in some circumstances, for example, where a workforce is drawn largely from one racial group or age group, purely internal or word of mouth recruitment can lead to the continued exclusion of other racial groups or age groups giving rise to the possibility of allegations of discrimination.
Shortlisting can include a paper sift, assessment centres and, or interviews. Using more than one person to review applications and agreeing in advance which skills are the most important for the role/a scoring scheme, will help to ensure that the process is fair, consistent and effective.
When interviews are used in a recruitment process preparation for the interview is crucial and again, ideally a panel of two people will often help to ensure objectivity. Care should be taken to ensure that questions (ideally prepared in advance) directly test the skill needed according to the job description and person specification for a role.
Those people responsible for recruiting should be given at least basic training in ensuring a fair and objective recruitment process that avoids discrimination and gets past any sales pitch to appoint the best candidate for the job. They should also have some training in creating and keeping an appropriate paper trail throughout the recruitment process.
- Offer the job
The way that you manage a recruitment process can have an impact upon your reputation as an employer. Before you offer a post it is a good idea to notify unsuccessful candidates so that they know that you are a company that cares about what it workforce thinks.
When you do offer a job to the successful candidate(s) you need to ensure that you comply with your obligations to carry out any right to work checks and obtain any necessary information from the employee. You should also decide upon any conditions attached to your offer of employment, which need to be proportionate to the circumstances of the role. It is common for employment to be offered subject to receipt of satisfactory references and confirmation of the right to work in the UK but you need to consider carefully your justification for anything more invasive such as a full credit check and/or a full health check before imposing such terms.
Under section 1 of the Employment Rights Act 1996 all employees are entitled to receive a statement of the terms under which they will work (including amongst other things pay /hours/holidays etc). You should decide in advance whether your offer letter will include the terms that you are required to provide or if you intend to provide an additional employment contract.
A good recruitment process is key to ensuring that you get the best talent and the right fit for your organization. There is plenty to say about managing a recruitment process well, which could not possibly be covered in one article. If you are looking to recruit and you would like more information on training recruiters, managing a paper trail or any element of a recruitment process please do get in touch via firstname.lastname@example.org