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How to avoid legal hot water when hiring

Many employers have found there is a shortage of good-quality, skilled candidates, and they need to move quickly because the market is increasingly competitive. But rushing the recruitment process is not necessarily the right approach because of the legal risks involved.

Avoid discrimination

The Equality Act 2010 prohibits discrimination, harassment and victimisation in relation to nine ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. In the context of recruitment, the Act provides that employers must not discriminate or victimise a person: in the arrangements they make for deciding to whom to offer employment; as to the terms on which employment is offered; or by not offering employment.

The meaning of ‘arrangements’ is broad and encompasses, for example, the format and content of the application form, the arrangements for the interview – such as location and timing – and the job description and person specification. The Act also prohibits pre-employment health and disability questions that are only permitted in certain circumstances; for example, to establish whether the applicant can carry out a function intrinsic to the work concerned.

You should use neutral language when preparing advertisements. In February 2016, the Equality and Human Rights Commission reported that it had received more than 100 complaints about discriminatory adverts with organisations looking for ‘young’ or ‘mature’ candidates, or stating that ‘over 45s need not apply’.

At the shortlisting stage, make sure more than one person is involved. This should mean more objectivity in the process and also provides the opportunity to discuss the merits of any borderline candidates. The shortlisting process must be carried out systematically using the job description and person specification.

Ideally, interview panels should be made up of those who have had equality and diversity and recruitment training to help avoid the problems that arose in Macdonald v Consulate General of Japan in Edinburgh (2016 employment tribunal). Ms Macdonald was asked what she would do if one of her young sons was sick, whether she could afford childcare and nursery costs, and who would look after her children if her husband was unavailable. The employment tribunal found that a male candidate would not have been asked these questions and made an award of £2,000.

Beware of unconscious bias

In September 2016, research published by Acas revealed that many employers are reluctant to hire people with visible tattoos and piercings because of concerns about how they would be viewed by customers and clients. An employer's background, personal experiences, societal stereotypes and cultural context can have an impact on recruitment decisions and actions they take without actually realising it. Research has also shown that nearly half of employers are biased against obese people. Ensuring that interviews are carried out by more than one person and reflect a mixed age, race and sex should reduce the risk of unconscious bias.

Train staff

An employer is vicariously liable for the acts of its employees during the course of their employment (as well as employees potentially being personally liable). To reduce the risk of liability for any discriminatory recruitment processes, employers should have in place an equal opportunities policy and ensure that all staff involved in recruitment have received training on equality and diversity. This will help to show that all reasonable steps have been taken to prevent discrimination occurring.

Establish the right to work in the UK

It is important that all staff, regardless of their nationality, can produce the appropriate documentation to show they have the right to work in the UK. In 12 July 2016, under the Immigration Act, the maximum penalty for employing an illegal worker rose to £20,000 per worker. From the same date, the maximum prison sentence increased from two years to five years.

Paula Kathrens is a partner in the employment law team at Blake Morgan

Added: 24-02-2017

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