Coronavirus Employer Checklist May 2020

Whether or not you have people on a leave of absence at the moment, coronavirus is undoubtedly affecting your business: You will be responding to changing economic conditions and adapting to the new norm in terms of health and safety, you may also have a number of employees on a leave of absence.

The Government is getting ready to announce plans to bring the UK out of lockdown and the Job Retention Scheme (Furlough) is officially set to start winding down. This seems like a good time for you as an employer to take stock of what you need to do within your business to take stock of adapting to the news norms. 

1. Staffing strategy – We’ve all heard the old adage “If you fail to plan….!” Now is the time to look at what is likely to change in your market, where are the new opportunities and what will you need from your people to achieve them.  A PESTLE analysis is a very useful document as a checklist to ensure that you don’t overlook something. I’ve sent out a coronavirus specific PESTLE template to retainer clients, if you need a copy, get in touch.

2. Health and Safety – There are lots of vague opinions floating around on what types of steps you might take to provide a safe environment but I’ve not seen a lot of clear practical guidance, other than from the likes of  EU OSH and kitemark. It is definitely worth downloading a free workplace risk assessment from HSE if you don’t already have something in place and going through the risks that coronavirus poses for your business. You need something documented for a number of reasons: to comply with your legal obligations; to ensure that you don’t invalidate your insurance by failing to take reasonable steps and to use in discussions with your staff, who are likely to feel apprehensive.  I am starting to get queries from people who have staff arguing about attitudes to social distancing (for example employees coming into work talking about meeting friends at the weekend and other people feeling angry about what they perceive to be an irresponsible attitude to coronavirus risk). By having clear risk assessments you can help to manage some of the inevitable fear that will exist amongst staff until people adapt to the idea of working in a world where coronavirus exists.Your insurance brokers and health & safety advisers have hopefully provided you with appropriate risk assessments. I have provided retainer clients with a coronavirus risk assessment to cover people, if you need a copy get in touch.
 
3. Furloughed staff – for those employees furloughed it is a good idea to keep in touch.  If you have an ongoing need for furlough, maintaining the engagement of  staff likely to return to the workplace is absolutely key right now both in terms of the wellbeing of those staff members (so that they are fit to return when the time comes) and commercially (you will be relying upon the discretionary effort and goodwill of your teams to come up with the creative solutions that you need in this new reality). A letter with an update on your business, how people can maintain contact (and ask questions) and some ideas on how to maintain health is a good idea. It goes without saying that I have produced a template!
 
4. Returning people to work – research shows that people will be anxious, some may refuse to return. You need to have a plan to manage people returning to work.You should write to employees explaining when they will return; why the time is right to return; what arrangements will be in place when they return (for example how you will manage any contact arrangements, meetings, annual leave requests, health and safety). I strongly advise that you adapt your existing return to work forms and ask line managers to sit down with employees individually to discuss working arrangements when they return to work: this will deal with any issues related to anxiety about work; any changes in working arrangements and any personal circumstances challenges (for example with commuting, living with a family member who is shielding etc). I’ve sent template documents to retainer clients by email but if you have not received them please get in touch.
 
5. Changing terms – if your PESTLE (see 1, above) shows you that you need to amend the way that your team works (for example your sales team moving to online platforms rather than visits, moving retail teams online or even changing to more remote working) you may need to get people trained up in different areas, review the way you manage pay any benefits (particularly for example with sales staff) and make changes to hours, job roles or even job location. 

Remember, as with my initial advice on furlough many weeks ago, you want any changes agreed in writing. If you are making wide spread changes that will impact in excess of 20 employees you will have collective consultation obligations under TULCRA. You should not wait for the end of furlough to start consultation on changes or redundancies (discussed below), consultation should begin as soon as you are contemplating these actions. Where possible utilise online meeting platforms to hold discussions with employees (such as Microsoft Teams, Zoom etc). I understand from a number of clients that some unions are advising members not to attend virtual meetings and to insist upon face to face meetings, whether or not this is reasonable will depend upon the circumstances that exist within your particular organisation. If an employee refuses to attend a virtual meeting it might be that you consider other options such as allowing representations in writing if you are unable to make arrangements for a physical meeting. You should take advice in this situation. I have already sent an email with template documents to retainer clients, if you need advice please get in touch.
 
6. Re-structure and redundancy – all of the points made in respect of changes to terms and conditions apply to a redundancy situation (particularly around consultation). If you are going to make redundancies you need to be removing any unnecessary cost beforehand (including re-negotiating any contracts to reduce costs, removing contractors where possible and ensuring that your employee lists accurately reflect the names of people who are actually working for you). If you do need to re-structure and make redundancies your starting point must be to understand practically why they are necessary. Whilst it sounds obvious that coronavirus will lead to an economic contraction, will lead to reduced income, will lead to a need to manage the cost base…. all of those things won’t stop people from challenging redundancies as unfair and so you will save time and cost later if you are clear now on what your business needs going forward and why particular roles (not people) are no longer required, which takes us clearly back to your PESTLE. Be vary careful of discrimination when you begin your redundancy process… resist any temptation to make a role redundant because the person in that role is shielding, for example.

I have experienced clients coming to me after the event with redundancy situations where they had decided in advance of speaking to staff who would be made redundant and so the redundancy was  unfair because there had not been meaningful consultation. This is one area where I would recommend that you take some advice. There is some limited advice on www.acas.org.uk which is likely to prove a useful free starting point. The Acas guidance on redundancy considers the practical neutral steps to be taken in a redundancy situation rather than how you can manage practical ramifications within your business, if the Acas guidance is not providing you with what you need please do get in touch. For retainer clients I have sent advice and template documents.

There is a lot to consider at the moment! I hope that my sharing of experience proves useful in helping you to get ahead of some of the people related challenges that you are facing. I would welcome any feedback and would love to hear about what is happening with your business, by sharing our experiences we can hopefully help our circle of contacts through these exceptional times.


Emma

Coronavirus

Photo by Brandon Nickerson on Pexels.com

26 February 2020

Over the last few days I have received several queries about how to manage the risks posed by the Coronavirus as an employer. I thought it might be useful to provide a short guide with a few FAQs. 

As at 26 February 2020 the number of cases of Coronavirus across the world reached 81,264, resulting in 2,770 deaths and there are now discussions about a pandemic being declared. 

As an employer Coronavirus poses a number of risks, irrespective of whether or not you require your staff to travel globally with work. We are fast approaching holiday season, which for many of your employees may mean travel, including to heavily affected areas such as Northern Italy. The risk of travel is not just that your employees may contract the illness but that they may become stranded if there are further lockdowns in hotels or resorts. Even if your employees choose not to travel there is a very real risk that Coronvirus will spread and the WHO has said that the world must prepare for a pandemic. If the virus becomes a pandemic it could lead to wider disruptions with suppliers and customers and to shortages of fuel and other basic commodities. There may also be disruptions to public transport.

There are a number of steps that you should take now to protect you, your employees and your business:

1. Be informed:

Make sure that you are aware of where the risks are in the world so that you can manage risks of business travel overseas, supply chain issues or employees travelling. The government updates the following website daily at 2pm: https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public

2. Treat infection control as part of your health and safety plan

This will only require small steps (similar to the steps being taken now in schools), such as making sure that you have adequate hand washing facilities (and perhaps a couple of posters to remind people about the importance of handwashing – get in touch if you need a poster). Consider providing hand gels in large work areas and tissues. Make sure that there is regular cleaning with adequate anti bacterial. Often these small obvious sounding steps are overlooked because people assume that these things are happening, always check that they are.

If you have field workers (particularly sales staff or business development) consider any options to limit travel by using technology (for example through skype meetings).

3. Make a Plan:

Consider what the threats might be to your business and put together a plan. Develop a contingency plan: Every organisation will need to assess its own level of exposure to business disruption caused by the virus.  We don’t need to get too doomsday about a plan but it is definitely worth considering some of the more likely potential implications of Coronavirus (hopefully some of the FAQs below will help with this part). 

Think about all of your stakeholders when you make your plan, for example:

1. Customers – are any of my customers likely to be impacted in their own business? Any located in heavily impacted areas? Is this likely to impact my order book? What are my existing deadlines? Any time related penalties? Check contracts and discuss with customers where they are and how you will keep in communication to avoid issues arising.

2. Suppliers  – are you sourcing from any affected areas? Do existing suppliers have contingency plans? Do you need to seek alternative back up supply chains to meet your existing contractual commitments?

3. Workforce – do you issue a statement about work related travel? What is your policy if somebody gets stuck abroad? Is there anybody for whom additional precautions are required (for example as a result of an underlying condition? )Are there any travel plans for people with key skills? What is the back up for key roles? Maximising remote working, infrastructure?

4. Creditors – how will you meet any ongoing financial obligations if you have to reduce output by 50%? Do you have insurance in place? Check with your insurance company what levels you have in place and any triggers for it to kick in. 

I have been working with clients over the last few weeks to put together some planning, if you need some support on this topic get in touch [here

4. Communicate with your workforce

There are lots of reasons to communicate with your workforce: first and foremost your plan will only be useful if everybody involved knows how it will work and what part they must plat. In addition everybody will know what to expect to help them make informed decisions (i.e. do I take the risk of a holiday abroad and being stuck in quarantine, would I be paid? Would I lose my job? etc); they may be worrying themselves about the risk of contracting the Coronavirus and/or they may be concerned by all of these reports in the media about economic downturn impacting upon their ability to keep a job.

Communication can be fairly informal, I would recommend a letter so that employees can digest what you are telling them (I have prepared one for retainer clients) backed up with a brief meeting. It is worth having a simple planning document that one person owns so that you can track any risk, who you’ve spoken to and what steps you have taken to manage any risk.

There is a lot to consider in this advice but the practical steps proposed should not take too much resource. If you require any further advice or template documents to support you please get in touch.

Kind regards,

Emma McKessy

07891 332 334

emma@hremploymentlaw.co.uk

FAQs

Can I force my employees to cancel any planned trips abroad?

No. Your employees have a right to a private life, when dealing with any risk you must take a reasonable and proportionate response to the situation. You may highlight to employees the facts of a situation (such as what will happen in the event that they get stranded abroad) but you must be careful not in a way that could be construed as intimidating or threatening, that could be said to undermine the trust and confidence in your employment contract with the employee (and so give rise to a potential constructive dismissal claim).

May I require my employees that I believe pose a risk to wear face masks?

The advice from the NHS is that there is no evidence of face masks preventing contagion of a virus and there is no reason to believe that there would be a reasonable requirement for them in a normal working environment. If your working environment poses a particular risk you may consider the introduction of face masks but remember that your actions need to be reasonable and proportionate to any perceived risk.

If you do intend to introduce new rules into the workplace to prevent the spread of infection (including additional PPE) you must make sure that you apply those rules equally to all employees (irrespective of sex, race, age, nationality etc). 

What should I do if somebody comes to work with the Coronavirus?

Contact Public Health England via https://www.gov.uk/guidance/contacts-phe-health-protection-teams

Can I suspend an employee that I suspect to be suffering from Coronavirus?

Yes, if you grounds to believe that they pose a risk to your workforce. You should remember that your decision should be a reasonable and proportionate response to any risk (so for example if you have a lone worker, there should be no reason to suspend). You should only suspend if you have clear objective evidence of a risk (for example your employee has travelled from an area listed by the government as one from which travellers should self isolate). There have been some ridiculous stories in the press about people being targeted because of their nationality, this would of course be race discrimination. If you are going to require an employee to stay away from work, always be evidence led.

If you do suspend an employee you will need to pay them full pay unless you have a clear right not to pay them under the terms of their contract, this will only apply in very limited circumstances. The government, ACAS, CIPD etc are pushing heavily for employers to make full payment to any employee suspended because of the coronavirus, suggesting that there is a moral responsibility. If you are going to suspend without pay make sure that you are legally able to do so (or take advice from me) otherwise you could find yourself facing a claim for unlawful deductions or even constructive dismissal.

Suspending somebody with key skills on full pay will obviously impact service delivery and your overheads, so is the least favourable outcome for you. The best way to avoid ending up in a situation where you need to suspend on full pay would be to prepare for a situation where your employee may be affected by coronavirus and communicate how you will deal with it in advance. I have prepared a template letter for retainer clients, if you would like a copy please get in touch.

If I need to close my business must I pay my employees?

The starting point is check your contract. Unless you have a contractual right to send your employees home without pay you will need to pay them in full for the time that they are away from work. If you have lay off or short time working arrangements, you may want to implement them. If you don’t have up to date contracts or you need support (advice/template letters) on short time working or lay off, get in touch.

You will want to minimise the amount of non value added payments that you make through utilising any agreements on holiday/unpaid absences/flexible working etc. This is where your contingency planning comes in: by taking a few steps now to make sure that you are in a position to operate as close to business as usual as possible. 

Make sure that contact data (email, work telephone, personal telephone and address) is held for your workforce (not just employees) and reviewed and updated on at least an annual basis to account for the common regular change in personnel and personal data, this will allow you to pull in resource quickly where needed. 

  • asking staff who have work laptops or mobile phones to take them home so they can work from home
  • arranging paperwork tasks that can be done at home for staff who do not work on computers
  • making sure staff have a way to communicate with the employer and other people they work with

 Can I require my workforce to work overtime to deal with unplanned absences?

Again, your starting point when it comes to requiring employees to work overtime is communication: explain the impact of failing to meet customer requirements and what you need from the team. If you are being met with resistance look to your employment contracts and see if there is a requirement to work the hours required. You may need to take a more formal approach and remind employees that you are giving a reasonable instruction.  

If you do need to request more of a smaller group of employees remember your health and safety obligations such as Working Time Regulations (particularly for younger workers). Also, it is important to ensure that appropriate training is given to any remaining workers who may be required to carry out unfamiliar tasks. You may need to review risk assessments and apply any necessary control measures to maintain quality/take account of the reduced workforce and the remaining pool of skills available to maintain your business. 

TOO SCARED TO DISCIPLINE?


At a recent networking event a director for a medium sized business told me about a problem employee at work. She said that the employee was causing damage to her business but she felt unable to reprimand the employee because there was no clear-cut evidence.


I was quite surprised at my new friend’s comments: whilst I always urge clients to take a fair approach to managing difficult situations with employees and to make informed decisions I would be horrified if I ever suspected that my own clients felt they could not tackle behaviour that was detrimental to their business. After speaking to a few more owner/managers at the event I found a common perception that the law is weighted very much in favour of employees and that it was unsafe to tackle misconduct without a cast iron case.


In reality the law does not enforce quite the same level of draconian standards upon employers as my peers at the networking event perceived. Yes, an employer must show reasonable grounds, based on reasonable evidence, for pursuing an investigation into misconduct but unlike the criminal courts there is no requirement for proof beyond any reasonable doubt that an employee is guilty of misconduct in order to take action.


The Court of Appeal has reinforced these rules when dealing with a university that instigated a disciplinary procedure in response to an incorrect reference produced by a university lecturer. At the time it appeared that the lecturer had lied about the competencies of a colleague. There were clear grounds to suggest that there had been a deliberate attempt to create a false impression to the recipient of the reference, another university. Following an investigation, a disciplinary process began. At the disciplinary hearing, after lengthy deliberation, the university decided that no disciplinary sanction should be applied to the lecturer.


The employee claimed that the university’s ‘duty of care’ towards her had been breached. The judge agreed with her because he found that after the end of the lengthy disciplinary process, the allegations of misconduct were questionable. The Court of Appeal overturned the original judgment. It found that at the time of commencing the investigation, there were reasonable grounds, in other words grounds within the range of reasonable responses to the situation open to the employer, to suggest that the employee had falsified the reference. There was no breach of duty of care.
This case illustrates a number of key points for employers when considering investigations into potential misconduct:
• It is important for an employer to clearly define the allegations at the outset. The investigation should involve searching for relevant evidence and speaking to each relevant witness before putting the allegations to the individual who is the subject of the allegation.
• An employer should consider any particular vulnerability on the part of an employee when deciding how to discuss a disciplinary investigation and/or the level of pastoral support that should be provided to an employee
• The subject needs to have a clear understanding of what the allegations are and the investigator should be careful to ensure that any issues that arise as a result of an interview are followed up before a decision on the pursuit of disciplinary proceedings is made.
• An employer is not required to carry out a police style investigation in relation to alleged misconduct and/or prove allegations beyond reasonable doubt before taking disciplinary action.

Avoiding a Danny Baker Type Blunder!

This week Danny Baker was sacked from the BBC for posting a picture on Twitter of the latest royal family arrival depicted as A suited chimpanzee.(https://www.bbc.co.uk/news/entertainment-arts-48212693).

In response to fierce criticism about the post Mr Baker was adamant that he saw no racist connotations in what he was posting and had intended only to poke fun at the royal family showing them interacting with circus animals.

So, if this was your employee posting tweets that could be considered racially offensive what would you do? Would you sack him? Undoubtedly there would be a risk of such a situation causing ill feeling amongst your staff, or even customers, if the situation went unaddressed. In reality if your employee works for you in a role with a low public profile it could be difficult to dismiss for a first offence unless you could show that you had clear   rules in place prohibiting such behaviour and that you had given your employee a reasonable opportunity to understand those rules.

So, what can you do?

Well, the starting point is to have clear contractual obligations, policies and procedures. The key elements are your  your contract of employment, disciplinary policies, and any equality and diversity policies.

The right of a company to protect image is not absolute and a court would balance that right with the right of an individual to a private life. There have been cases where dismissals for posting derogatory comments about an employer on social media have been found to be unfair because the comments were not serious enough or the employee had not been warned sufficiently of the consequences. In Crisp v Apple Retail (UK) Ltd ET/1500258/11 the court found that it was fair to dismiss an employee for posting Facebook comments. It was critical to the tribunal’s decision that Apple had made clear in its policies and training materials that protecting its image was a “core value” and had drawn attention to the fact that making derogatory comments in social media was likely to constitute gross misconduct. The court considered Mr Crisp’s right to privacy but found that he did not have a reasonable expectation of privacy in respect of his Facebook page (despite his privacy settings) since he had no control over how his comments might be copied and passed on.

Contract of Employment

What you put into a contract of employment will depend to some extent upon the role to which you are recruiting.  A standard contract is usually sufficient for junior members of staff if you are going to have senior employees or employees with access to key clients/ who will be representing your brand on social media it’s a good idea to get contracts tailored (particularly with regards to restrictive covenants and any warranties related for example to professional qualification). However you manage your contracts, what is absolutely essential is that those contracts reflect the needs and the culture of your business: just like Apple, reflect your core values through all activity with employees.

Disciplinary Procedures

In your disciplinary procedure it’s absolutely essential that you make clear any behaviour that will amount to gross misconduct in your particular organisation (especially if such conduct would not ordinarily amount to gross misconduct in every organisation). If you have employees that use social media for work and they are quite clearly linked to your organisation and your branding you need a clear policy, backed up with training, that sets out what you consider to amount to acceptable behaviour and identifies what you would consider  as controversial comments on social media.

Equality & Diversity

The world is changing quickly, in many cases for the better. We’ve reached a time where there is a lot more awareness of the fact that our differences are something to be celebrated rather than used against us. However, some of your employees will struggle with this. I’ve seen cases where colleagues have been friendly for 15 years and then one unintended but toxic word has destroyed the relationship, as well as resulting in a dismissal. That particular case was upsetting for everybody.

Nobody, including you, wants to lose good people as a result of ignorance. When it comes to a equality and diversity what is accepted as a social norm regularly changes in society. Some comments, Particularly linked to gender place of birth race age etc, that were deemed perfectly acceptable in the workplace 20 years ago are no longer acceptable and cannot be tolerated. I’m not sure I buy that anyone with his experience and status could be so ignorant as Mr. Baker claims to have been but it is not uncommon in my experience for people to struggle with what is and is not socially acceptable.

Mr Baker‘s point that he had no idea that his comments would cause offence raises an interesting point, how do you know what is offensive? The answer is through training. When managing working relationships it is often not the blatantly unpleasant people that are difficult to mange (because we can just take them through a procedure) but those who can occasionally be insensitive or lack awareness. Everybody spends a lot of time at work and as managers and employers, we have a responsibility to ensure that those working environments are not toxic or intolerable.

Commercially there is often a temptation to think “if it’s not broken don’t fix it”, in other words there is no reason to take action unless there has been a complaint. However, it’s the unseen costs and the risks of not knowing that you have an issue until it’s too late that you need to guard against. Discriminatory comments in the workplace are dangerous: they would undoubtedly lead not only to poor working relationships, low productivity and a hostile environment but also in some cases the risk of a claim. The only way to avoid the situation is to educate your staff. Have an up-to-date equal opportunities, anti-bullying and harassment policy and make sure that your train staff on what that means. Free resources are available from ACAS www.acas.org.uk or the EHRC.org.uk  You can write a short training course (as a brief toolbox talk) and deliver it yourself in house.

If you do decide that you would like some further information or support with any of the issues raised in this blog please get in touch via emma@hremploymentlaw.co.uk or 07891332334.

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Can Ugly Ducklings be Racist?

At the very least they can certainly cause offence….

https://www.independent.co.uk/life-style/waitrose-easter-duckling-racist-ugly-twitter-apology-a8860991.html

Waitrose recently became the subject of much criticism about a decision to sell a three pack of ducks with the names Fluffy (white duck), Crispy (brown duck) and Ugly (black duck). This bizarre marketing choice resulted in a number of people complaining about racism, whilst others argued that a complaint about a chocolate egg is political correctness gone mad. Perhaps, but perhaps not. If the first two ducks had affectionate sounding names and the third had a derogatory name where the only difference between them is colour, it isn’t a stretch to conclude that somebody might be offended.

This issue demonstrates how easy it is for a business to inadvertently cause offence. The only distinguishing feature between the three ducks is colour. In our fantastically diverse society I’m sure that makes a number of those uncomfortable, irrespective of The colour of our own skin. There are plenty of things that hashtagEmployers can do to avoid this type of situation. As a start equality impact assessment forms should always be used when considering any hashtagRecruitment hashtagBranding or significant measure that impacts your people management strategy. hashtagDiversity and hashtagInclusion are words that should mean something more than box ticking. There are compelling commercial reasons why every employee (and every business) should have a detailed understanding of the society in which they operate. There are plenty of advisors around (including me!) that can support businesses to develop an inclusive workplace and comply with their duties under the hashtagEqualityAct. At the same time there is plenty of free guidance and some good template documents on either the Acas or the EHRC websites.

A BULLET POINT GUIDE TO….. RECRUITMENT BEST PRACTICE

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……

  1. 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.

  1. 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.

Job Description

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!

Person Specification

  • 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.
  1. 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.

  • Advertise

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.

  • Shortlist

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 emma@hremploymentlaw.co.uk