The recruitment process is a source of increasing legal risk for employers.
We can help you stay compliant.
Employers have to meet a growing number of legal duties during the recruitment and selection process.
Employers must ensure their recruitment processes are fair and do not discriminate. They must also conduct mandatory pre-employment checks on all new employees and ensure compliance with data protection legislation.
This can complicate what is already a delicate and often unpredictable process, leaving many employers at risk of inadvertently discriminating against job applicants or breaching their legal duties.
Getting it wrong exposes employers to claims for discrimination, administrative fines and potentially criminal liabilities.
Recruitment legal advice
Key legal risks of the recruitment process include:
- Privacy & data protection – Under the GDPR, you should be open and transparent about your processes for handling and storing candidate data provided as part of the application.
- Discrimination – Under the Equality Act 2010, it is unlawful to discriminate against a candidate during the recruitment process, just as it is unlawful to discriminate against an employee in the workplace.
- Job description wording – Any person specifications must relate to genuine occupation requirements essential to performing the role.
- Job advertisement placement – Targeting your job advertisement can lead to indirectly discriminating against individuals outside this group. Job ads should be placed where there is a broad reach of candidates.
- Interview selection – You should ask if any reasonable adjustments will be needed for the candidate to attend the interview.
- During the interview – Check your questioning does not open you to allegations of discrimination by moving into personal circumstances.
- Candidate selection – Basing your candidate selection on assessment of social media profiles would expose you to risk should you be challenged on the reason for your decision not to take the applicant to the next stage.
- Making the offer of employment – The proffered pay level should be equal to that of others performing the same work. The offer letter should make clear that the offer is conditional on the applicant proving they have valid right to work.
- Right to work – Before you can lawfully employ anyone in the UK, you must be satisfied that they have valid permission to do the work on offer. They have to provide you with documentary evidence of their right to work before they commence employment. This applies to all workers, regardless of nationality. If you fail to verify a person’s status and subsequently hire them unlawfully, your organisation will be at risk of a fine of up to £20,000 per illegal worker.
- Record keeping – If you are faced with a claim for discrimination brought by a job applicant, evidence of your recruitment and selection process will be critical to your defence. Keep copies of all ads and communications with candidates and importantly, take contemporaneous notes during interviews of the questions asked and the answers given.
We can help
DavidsonMorris supports employers across the UK with advice on operating fair and compliant recruitment and selection processes, while ensuring focus remains on identifying and selecting the best candidates.
We help HR and recruitment teams ensure practices remain within the law from the outset of the employee lifecycle – even before candidates are onboarded and a contractual relationship is established.
We advise on how to observe the legal protections afforded to job applicants and avoid inadvertently discriminating against candidates or breaching legislation at every stage of the recruitment process:
- Advertising vacancies
- Selecting candidates for interview
- Conducting interviews
- Selecting successful applicants
- Making an offer of employment
- Performing pre-employment & right to work checks
- Recruiting international workers from overseas
In addition, our leading team of immigration lawyers can provide specialist guidance on conducting mandatory right to work and pre-employment checks as part of the onboarding process. The team can also advise where you are looking to recruit from overseas, providing specialist guidance on the immigration routes and Home Office applications that you will need to follow.