Q: What should I be aware of in my job advertisement?
A: The first thing to note (as a general point to the whole recruitment exercise) is that, whilst not being employees (at this stage), applicants do have certain legal rights, the crucial one being the right to be protected against unlawful discrimination, including the following grounds:
- sex
- race
- disability
- religion or belief
- sexual orientation
- age; and
- marital status.
So, the wording in the job advertisement needs to be carefully considered to ensure that it cannot be deemed to be discriminatory. There are certain limited exceptions (prescribed by law) entitling employers to fill a post with a worker from a particular race, religion or belief, sex, sexual orientation (or who are married or in a civil partnership), age or age group. Those cases fall under the genuine occupational qualification exception.
Q: Isn’t an interview an opportunity to find out anything you can before the employee gets some rights?
A: It is certainly the case that interviews can be rigorous and that they provide an opportunity to gauge an applicant’s attitude, ability and personality. However, because of the potential discriminatory issues involved, care needs to be taken. It would not be appropriate, for example, to ask a woman who is in her late twenties and recently married if she wants to start a family. Likewise you should not ask a Jewish applicant if he will insist on taking Hanukkah off work, nor should you immediately refuse to interview an applicant because they are in their late 50s. Remember that it is unlawful to discriminate on the grounds stated above.
Q: Can I just avoid interviewing people I have concerns about?
A: The right not to be discriminated against applies to applicants as well as those who actually attend the interview process. An applicant who is suitable and qualified for the job but is denied an interview may allege (and seek to infer) discrimination. You should not simply avoid interviewing people as this can also amount to discrimination.
Q: Anything else about the interviewing process?
A: You should treat all applicants consistently and be able to prove that you have treated them consistently. Have a clear set of (non-discriminatory) criteria with which to sift applications and a set list of questions that form the basis of the subsequent interviews.
It is advisable to keep clear notes about how you vetted applicants for interview and to keep the applications for at least three months after the process is completed. Applicants who wish to bring a claim for discrimination must do so within three months; if you should receive such a claim it is beneficial to have all the documents to support your defence of that claim.
You should also keep all interview notes, ensuring that during the process nothing potentially discriminatory is written down: “over 50” may simply be noted dispassionately and as a fact, but in the face of a discrimination claim this note may appear rather more damning.
Q: Once I have decided on the successful applicant what should I do?
A: At the point an applicant becomes an employee, they are granted a raft of new rights. It is important that you start the employment relationship on the right footing by issuing a contract of employment suitable to the position the employee will occupy. All contracts must comply with section 1 of the Employment Rights Act.
Sometimes the new employee does not work out. It is worthwhile starting all employees on a probationary period, even if they appear to be your dream employee. During this probationary period you, and the employee, may terminate the contract on short notice.
Q: What if the job means the applicant will be working with children or vulnerable adults?
A: A condition of the applicant’s contract of employment should be that they pass, and throughout the course of their employment continue to pass, the checks required to work with children and vulnerable adults. It is worth noting that a CRB check only verifies the individual at the time the check is made. It is not continuously updated, so if an individual receives a subsequent conviction this may go unnoticed. It is therefore good practice to periodically carry out further CRB checks to ensure an employee has not subsequently received a conviction prohibiting them from performing their role.
The Vetting and Barring Scheme, which was due to start on 26 July 2010, was due to be a continuously updated database, which would flag up individuals as soon as they were barred from working with vulnerable parties. However, the scheme has been halted by the new government to allow it to remodel the scheme to what it calls ‘common-sense levels’.