For employers, the primary concern during the recruitment process will be finding and onboarding the right candidate. But the recruitment process not only carries risks in selecting the best person for the job. Employers also have to contend with legal risks, ensuring applicants’ rights are not infringed and that the organisation has complied with its legal obligations.
There is no single piece of UK legislation governing the recruitment and selection process, but there are various different statutes dealing with the employment relationship that can have an impact on pre-employment issues. As such, recruiting new staff can be a legal minefield for employers, from allegations of discrimination to dealing with data protection.
In this guide for HR, managers and recruiters, we outline the main legal issues you need to be aware of when recruiting, to avoid complaints and to support a positive employer brand.
Recruitment laws on equality and discrimination
Ensuring that your recruitment practices do not discriminate against applicants is an important part of the process. Under the Equality Act 2010, allegations of discrimination are potentially far-reaching, from the way in which you advertise a job role to how you go about selecting the successful candidate. As an employer, whilst you will want to find the best person for an available position, you must ensure that you are not falling foul of the law. This is because all job applicants have a right not to be unlawfully discriminated against because of any one of the nine protected characteristics under the Act, including age, race, religion, disability, gender reassignment, sex and sexual orientation.
Even though you have not yet employed a person, if you treat any applicant unfairly during the recruitment process, you can still be guilty of unlawful discrimination for which a claim can be brought before the employment tribunal for a declaration and compensation. For example, when writing a job advert, you must not ask someone how old they are, or use phrases like ‘recent graduate’ or ‘highly experienced’, unless these are specific requirements of the job role, otherwise risk discrimination on grounds of age. Equally, you must not ask someone about their marital status, or if they have any children or plan to have children.
Similarly, when it comes to screening and selecting for interview, or making job offers, it would be unlawful not to select someone, for example, because they are pregnant, or for any one of the other protected characteristics as set out under the 2010 Act.
In addition to the Equality Act 2010, you should also consider the Employment Statutory Code of Practice, as produced by the Equality and Human Rights Commission (EHRC). This contains best practice advice in regards to recruitment and avoiding discrimination, including suggestions like having a wide pool of candidates, following a clear and objective selection process, and being open minded in your selection and not making assumptions.
Recruitment laws relating to disability
Even though rights relating to disability forms part of the broader topic of equality and discrimination, this still warrants individual discussion. This is because employer’s are under a separate statutory duty to make reasonable adjustments, where appropriate, to any part of the recruitment and selection process to ensure that a disabled applicant is not substantially disadvantaged in comparison with those who are not disabled. Again, under the Equality Act 2010, this duty comprises the following three requirements:
- where any provision, criterion or practice puts a disabled applicant at a substantial disadvantage when compared with non-disabled applicants, to take reasonable steps to avoid that disadvantage
- where a physical feature in the workplace puts a disabled applicant at a substantial disadvantage when compared with non-disabled applicants, to take reasonable steps to avoid that disadvantage
- where a disabled applicant would, but for the provision of an auxiliary aid, be put at a substantial disadvantage when compared with non-disabled applicants, to take reasonable steps to provide that aid.
As such, the duty extends to both the way in which a vacancy is advertised and the way in which any assessments and/or interviews are carried out. For example, you may need to provide an advert in an accessible format for the blind, such as Braille or audio format. You may also need to provide a ramp to help facilitate access for wheelchair users, or to hold assessments days and interviews on the ground floor where there is no wheelchair access to upper floors. The EHRC’s Employment Statutory Code of Practice can again be useful here.
Recruitment laws & right to work checks
Under the Immigration, Asylum and Nationality Act 2006, employers must carry out prescribed right to work checks on all new recruits. This is because employers have a responsibility to prevent illegal working by ensuring that anyone employed by them is not prohibited from undertaking work in the UK, or from doing the work on offer, by reason of their immigration status. However, so as not to discriminate, employers must conduct these checks on all their new-starters, regardless of race, ethnicity or nationality.
You can check a new starter’s right to work in one of three ways: by using the services of an Identity Service Provider (IDSP), by using the online Right to Work Employer Checking Service or by conducting a manual document check. The way in which you conduct a right to work check will depend on your new-starter’s nationality and the way in which their immigration status is held. For example, IDSPs can only be used to digitally verify the identity of British or Irish nationals, whilst an online check will be suitable for migrant workers whose immigration status is held in digit format, such as those with eVisas. Importantly, if you are employing migrant workers, you may first need a Home Office approved sponsor licence.
If you are found to be employing an illegal worker and have failed to carry out a right to work check, you could be liable to a civil penalty of as much as £20,000 for each illegal worker. You could also be prosecuted if you employ someone when you know or have reasonable cause to believe that they are not allowed to work in the UK or do the work on offer. This offence is punishable by up to 5 years’ imprisonment and/or an unlimited fine.
Recruitment law on criminal record checks
In addition to right to work checks, you may also need to conduct a criminal record check, previously known as a CRB check, but now referred to as a Disclosure and Barring Service (DBS) check. A DBS check is a check of someone’s criminal record that is typically required if a person will be working in healthcare, childcare or other regulated activities. However, the level of check required will depend on the job role to be undertaken.
For recruits who will be working with children or vulnerable groups, such as the elderly or disabled, you would need to conduct either an enhanced DBS check or an enhanced check with barred lists. An enhanced check will show both unspent and spent convictions and cautions, plus any information held by local police considered relevant to the role, whilst an enhanced check with barred lists will also show if an applicant is on the list of those barred from doing the role in question. You will be breaking the law if you knowingly employ someone to work with vulnerable groups from whom they are barred from working with.
Equally, you may need to conduct a standard check for legal or financial sector job roles, for example, to rule out any history of either fraud or financial misconduct for an accountant or lawyer. This check will reveal details of both unspent and spent convictions and cautions, as well as reprimands and warnings, as held on the Police National Computer.
However, you can conduct a basic DBS check on all new recruits, regardless of their job role, although you must have in place a policy on employing ex-offenders to show to any applicant who asks for it. This is because, under the code of practice published under the Police Act 1997, employers must treat applicants with a criminal record fairly, and must not discriminate automatically because of a conviction or any other information revealed. A basic check will show any unspent convictions and conditional cautions.
To help meet the workplace policy requirement, the DBS has produced a sample policy statement that can be found online. This can be used or adapted for this purpose, where your completed policy statement can also be included within any equal opportunities policy.
Recruitment laws on employment terms and conditions
When advertising a vacancy, it is common practice to indicate the likely salary, or salary bracket, depending on the experience and skillset of the successful candidate. However, having selected a final candidate, you may then need to negotiate an exact figure which you both agree upon. You must also agree to various other terms and conditions, such as paid holiday and the right to a minimum notice period on termination of employment.
When it comes to terms and conditions, the minimum statutory rights of your new recruit must be factored in. For example, under the National Minimum Wage Act 1998, an employee is entitled to be paid at least the National Minimum Wage (NMW). The NMW rate depends on age, and ranges from £4.81 to £9.50 (for 2022). Equally, under the Working Time Regulations 1998, an employee must be given at least 5.6 weeks’ paid annual leave, whilst under the Employment Rights Act 1996, they must be given a minimum of a week’s notice having been employed between one month and 2 years, and a week’s notice for between 2 and 12 years, up to a maximum of 12 years.
You can provide your new-starter with enhanced contractual rights, so give them more paid holiday or a longer notice period, but you cannot ask them to agree to less. You must also set out the agreed terms in a written statement of employment particulars. This should comprise a principal statement, including basic details such as the person’s working hours, and how much and how often they will get paid, with a wider written statement within 2 months of their start date. However, most employers will provide their new-starter with a full and comprehensive contract of employment, dealing with a whole host of other rights and responsibilities in respect of both the employer and employee.
Recruitment laws on data protection issues
The recruitment and selection process necessarily involves an employer collecting and using information about a potentially large number of applicants, where any data that you hold and process will be covered by the Data Protection Act 2018.
As much of the information provided by an applicant will be personal in nature, the 2018 Act governs the lawful processing of this sensitive personal data. Helpfully, the Information Commissioner’s Office (ICO) has produced an Employment Practices Code, with a section offering guidance on your obligations in respect of candidates within the recruitment process. This includes good practice recommendations around advertising, applications, short-listing, interviews, pre-employment vetting and retention of recruitment records.
Some of the key points to consider within the context of data protection, and more specifically in the context of job applications and pre-employment vetting, include:
- you should make job applicants aware of how you will process their data, especially where this is not self-evident, and for how long you will keep that data for
- if information from the application form will be used for any other purpose than to recruit for a specific job, make sure that this purpose is stated on that form
- only seek personal information that is relevant to the recruitment decision to be made, where you may need to determine whether all questions are relevant for all applicants
all applications should be treated confidentially and only circulated to people involved in the recruitment process
- it will be necessary to consider what information from the application will be retained for the successful candidate, where this should not be everything, but rather only the information that is relevant to your ongoing relationship as employer and employee
- if you retain information about candidates who were not successful, they should be advised of this, and for how long you will retain their information. They should also be given the opportunity to have information removed from your systems.
DavidsonMorris’ specialist employment lawyers are experienced in advising employers on all aspects of recruitment, including guidance on how to ensure compliance with your legal obligations through the hiring and onboarding process. Through our fixed-fee service Triple A, employers can gain access to unlimited employment law advice. For more information about Triple A, or how we can help your organisation, speak to us.
Recruitment law FAQs
What are the recruitment laws in the UK?
There is no single piece of legislation governing recruitment laws in the UK, where there are various statutes dealing with the employment relationship that can have an impact on pre-employment issues, from allegations of discrimination to dealing with data protection.
What legislation applies to recruitment?
Various different pieces of legislation can impact the recruitment and selection process, including the Equality Act 2010 which deals with unlawful discrimination, and the Data Protection Act 2018 which governs the lawful processing of an applicant’s sensitive personal data.
What are the laws affecting recruitment process?
The laws affecting the recruitment processes adopted by employers across the UK are wide-ranging, from the rules around unlawful discrimination and data protection, to the implications of conducting right to work and criminal record checks on all new-starters.
What are the legal requirements for recruitment and selection?
There are various legal requirements that employers must take into account in the context of recruitment and selection practices, for example, a candidate must not be rejected for a role because they are pregnant, as this would be unlawful discrimination.
Last updated: 26 November 2022