Are you planning to recruit a new member of staff? Before you do, consider these do's and don'ts to make your process legally robust.
1. We want to advertise externally. Are there any things we shouldn’t say?
Yes. Your choice of words can potentially give rise to a discrimination claim.
Don't use language that could be perceived as discriminatory, or suggests you are excluding applicants from a specific sex, such as ‘shop girl,’ ‘bar maid’ or ‘handyman.’ You also shouldn’t use language that suggests you are limiting applications from candidates in certain age brackets, such as ‘mature,’ ‘young’ or ‘recent graduate,’ or will exclude candidates who are disabled.
However, you can limit applications to a particular group of people if there is an occupational requirement. For example, if you are recruiting a care worker to help women with their personal care – such as washing and going to the toilet – you can specify in your advert that the applicant must be female.
Special considerations apply in respect of disability discrimination. You can advertise a job as only open to disabled candidates, even where disability is not an occupational requirement for a post. This is because disabled people find it much more difficult to find employment and a non-disabled candidate can’t complain of being treated less favourably than a disabled candidate because of disability.
2. Do we have to create an application form or can we just ask the candidate to tell us why he/she wants the job?
You can ask candidates to apply for the job in a number of ways, including asking candidates to submit a covering letter, explaining why they are suitable for the position, to accompany their CV.
However, application forms are good because they ask a series of questions designed to help candidates identify how they meet the skills and qualifications you are looking for. They also help you to assess their suitability when creating a shortlist. If you use an application form, do not ask for irrelevant and unnecessary information.
You should avoid:
- Asking questions about the applicant’s personal life, marital status or age
- Requesting a photograph
- Asking if the applicant is eligible to work in the UK (you can ask about this later)
- Asking questions about the applicant’s health or disability, except to find out if they need any reasonable adjustments to be made if they are asked for an interview
- Asking questions about any spent convictions the applicant has, unless an exemption applies (such as where the job requires a criminal record check – now known as Disclosure and Barring Service or DBS checks).
Remember that whatever method you use must be secure and applicants should know who they are giving their details to.
3. What is the best way to shortlist candidates?
That will depend on the job role and the resources you have available. The method you use must be objective and non-discriminatory.
Shortlisting involves matching individual applicants' skills and experience to the job description and person specification, and sifting less suitable candidates from the remainder of the recruitment process. If you do this manually, it is good practice to involve more than one person in screening applications and making decisions about selection. You should agree the weighting to be given to each criterion in advance of the interview, and the minimum score for qualifying for an interview or the next stage of the selection process.
Some employers use automated systems to short list candidates. If you do this, you should make sure that applicants are informed and that you have tested the system to make sure that it does correctly filter candidates.
Blind shortlisting is a good way of eliminating unconscious bias. This is a process whereby the applicant’s name is removed before applicants are shortlisted.
4. Can we search candidate’s profiles on social media to find out more about them?
Whilst there is nothing to stop you doing this, there are risks if the decisions you then make about a candidate’s suitability are discriminatory. For example, suppose you are looking to recruit someone and you see that one of the applicants has a profile picture in which she appears to be pregnant – rejecting her on this basis will amount to direct discrimination.
In addition, there are data processing issues that you need to consider. Rejected candidates can ask to see all information you have obtained about them which will include the results of any social media searches you have undertaken.
The Information Commissioner recommends that this type of vetting should only be used where there are particular and significant risks involved to you, your clients, customers, or others, and where there isn’t a less intrusive and reasonably practicable alternative. This sets the bar quite high. The searches you make should also be proportionate to the job role.
If you do decide to search social media profiles, you should inform applicants that vetting will take place and the form it will take, for example social media, criminal history and/or credit check. This will provide applicants with a chance to clean-up their online profiles or, at the very least, alter their privacy settings to prevent you seeing personal information.
Generally, you should only search profiles once an applicant has been shortlisted or conditionally appointed. You should then give them the opportunity to comment and make representations on the accuracy of any findings.
5. What should we do if the interviewer has a personal connection with one of the candidates?
Any personal connection between a candidate and the interviewer could influence their decision and may mean that you don’t get the most suitable candidate. If the interviewer is reaching a decision on his/her own, it would be sensible to ask another manager to conduct all of the interviews to avoid any allegations of bias.
If that is not possible, someone other than the interviewing manager should compile the list of interview questions and the weighting to be attached to these.
If the interviewer is part of a panel, you could remove him/her or ensure they do not have a casting vote in the event that candidates score equally.
6. Do we need to ask the same questions to each candidate?
Yes. Prepare the questions you want the candidates to answer before the interviews take place. These should be based on the skills and competencies necessary for the job and reflect the job description and person specification you have provided.
If you don’t prepare detailed questions in advance, it makes it much harder to avoid bias and establish a level playing field for multiple interviewees.
7. Are there any questions we should not ask candidates?
Yes. You must not ask any questions that might lead to you discriminating against a candidate or being perceived to have done so.
You should avoid asking:
- About a candidate’s health before offering them the job – unless this is necessary for the work concerned. For example, it would be lawful for a construction company to ask, when recruiting scaffolders, whether they have a disability or health condition that would affect their ability to climb ladders but not if it was recruiting to an admin role.
- A candidate if they are pregnant or expect to start a family soon. A woman is under no obligation to declare her pregnancy in a recruitment process.
- About a candidates’ childcare or other caring commitments. Work on the assumption that the candidate can work the hours you have specified in your job description.
You should ask all candidates the same questions – ideally in the same order. You may have to make some allowances to address specific issues, but don’t let yourself be sidetracked.
We all make snap judgments about individuals and research indicates that most employers reach a decision about a candidate’s suitability for the job before they even open their mouth. Be aware of this and make a conscious effort to give every candidate the same chance. Using standardised questions will help as will an awareness of unconscious biases we all have.
Remember: if you make assumptions about a candidate’s suitability for the job based on a protected characteristic, such as age, sex, disability etc. the rejected candidate may bring a discrimination claim against you as job applicants are protected from discrimination.
8. Do we need to take notes during the interview?
You don’t have to take notes but it is good practice to do so. This will help you to apply the same criteria to all applicants and compare their responses. It will also provide evidence of your thought process, if it is questioned.
9. How long can you keep applications/CVs and scores for unsuccessful applicants?
The Data Protection Act 1998 imposes restrictions on how employers process and retain information about employees and job applicants. You should have a policy which states how long you will keep job applications, how these will be used – for example, to consider if other vacancies arise – and where they are stored.
Bear in mind that the laws around data protection are changing. From Friday 25 May 2018, the General Data Protection Regulation (GDPR) comes into force. You will be obliged to provide job applicants with a privacy statement – sometimes referred to as a fair processing notice – which explains why you are keeping the information, the legal basis you are relying on to process it and for how long you will keep it.
Applicants have a right to see any notes you have taken. You will also need to retain some candidate data for responding to potential employment tribunal claims arising out of the recruitment process. Most discrimination claims have to be issued within three months of the act of discrimination complained about (although compulsory notification to ACAS can delay this by up to six weeks). Therefore, in most cases it would not be necessary to retain interview notes, and other relevant information, longer than six months from the date of the interview.
Sign up to receive our monthly employment law update
More on this subject
March 2018
For general enquiries
0808 291 3524
Or we can call you back at a time of your choice
Phone lines are open 24/7, 365 days a year
