Sadly it’s true. A recruitment agency was widely criticised in the press last month after posting job adverts for “attractive women” and specifying what bra size applicants should be. Whilst outrageous examples like this still appear from time to time, fortunately the vast majority of employers wouldn’t dream of directly discriminating against candidates. But how confident are you that your processes are not inadvertently indirectly discriminatory?
As employment lawyers, we tend to see some common issues with the way some companies identify, engage and contract with their most important assets – their people. One single poorly executed recruitment process could cost a company tens of thousands of pounds in wasted time, legal fees and compensation. Not to mention the reputational damage and the opportunity cost of missing the right recruit.
We set out below our top five tips to help guide you through some of the key legal challenges and mitigate the potential risks to your organisation.
1. Stating the obvious: Don’t advertise an intention to discriminate
Recent European case law has confirmed that opportunistic claimants who trawl job adverts looking for discriminatory wording to bring a claim will not be protected if they have no intention of applying for the role. This is a welcome decision that will be a relief for employers. Nevertheless, the wording of job adverts deserves careful consideration: it’s not just the obvious that you need to be wary of.
According to the Equality and Human Rights Commission, the most common complaint regarding the wording of job adverts is the requirement to have a driving licence. This may deter, and potentially discriminate against, disabled applicants. It is of course lawful to specify certain requirements (including having a driving licence) but you must be able to justify them: are they really essential to the role? Such justifications should be documented in case you need to refer to them in future.
2. Background checks and the right to work
Requesting references and verifying qualifications are a standard part of any recruitment process, but additional background vetting - such as criminal record, credit, medical and even social media checks - may only be carried out in certain circumstances and in accordance with data protection law. Employers should follow the ICO’s employment practices code, which sets out good practice recommendations.
Key principles to bear in mind:
- Background vetting should only be used where there are specific risks to the company, its clients, customers or others, and where there is a no less intrusive or reasonably practicable alternative. What checks are appropriate will depend on the role e.g. whereas credit checks may be justified for a Finance Director, they may not be for a Sales Manager.
- Applicants should be informed at an early stage in the process (e.g. the application form) that vetting will take place and how it will be conducted, including any external sources that will be used.
- Checks should be made as late as possible in the recruitment process i.e. only subject those selected for the job to pre-employment vetting rather than all shortlisted applicants.
- Only use vetting as a means of obtaining specific information, not as a means of general intelligence gathering.
- Do not rely on information collected from potentially unreliable sources and allow the applicant to make representations regarding information that may affect the decision to appoint them.
- Information obtained from background vetting should be destroyed ASAP, and ideally within 6 months. A record of the result of vetting or verification can be retained.
Employers must make sure all job applicants have the right to work in the UK before employing them. This involves seeing original documents, checking they are valid and keeping a copy for future inspection. New rules require employers (and therefore HR and in-house recruitment professionals) to be even more stringent in ensuring that employees have the right to work and increase the penalties for failure to comply.
3. Restrictions on employment
Before a candidate commences employment, it is essential to check they are not subject to any contractual restrictions preventing them from working for you, such as an unexpired non-compete with a previous employer. If they are, your organisation could be liable for inducing a breach of contract by employing them. If a candidate indicates that they may be subject to restrictions, ask for a copy of the relevant clauses and take specialist legal advice.
For additional protection, it is advisable to include guidance for new recruits in your staff policies reminding them not to use confidential information they may have obtained during their previous employment whilst employed with you.
4. Get the contractual documentation right
Make sure you are using the right type and level of contract for the role. The contract should also be up-to-date reflecting the latest laws and should include all the necessary protections and flexibility your organisation might need. In particular, care should be taken to ensure that any post-termination restrictions are tailored appropriately for the individual, otherwise there is a risk they may not be enforceable when you later need to rely on them.
Any conditions to which employment is subject, such as satisfactory references and background checks, should be clearly stated in the offer documentation. Failure to do this may mean it is not possible to withdraw the offer of employment even if the result of these checks is unsatisfactory and notice to terminate will need to be given in accordance with the terms of the contract.
5. Early employment: probationary periods and performance issues
It is generally a good idea to include a probationary period in a contract for a new employee. This sets expectations that the employee’s performance will be monitored and enables the employer to terminate employment on minimal notice if things don’t work out. If the contract does not expressly give the employer discretion to extend a probationary period, it will only be possible to do so with the employee’s consent.
Where a probationary period has been included in the contract then employers should utilise this by meeting with the employee to discuss their progress. This is particularly important where there are concerns about the employee’s suitability for the role. Such concerns should be discussed and documented at an early stage, even if only as part of an informal process, to help demonstrate the real reason for any dismissal in case the employee subsequently challenges it.
This article is part of the November edition of Bird & Bird's monthly Employment law newsletter which you can sign up to here.