In early November 2023, Employment Expert & Associate Chris Dobbs held our first webinar in our new monthly series of ‘Coffee Break Briefings’.
In that free webinar, he looked at the first step in the ‘employee lifecycle’: recruitment.
Chris talked about the legal implications for employers, including the key legislation, GDPR and how to mitigate potential claims.
This is the summary of that webinar. You can watch it back below, or read on for the summary.
Quick Links
This is a rather long topic, so you can use the links below to navigate to certain areas of it that might interest you.
- Key legislation
- The decision to recruit and the process
- Job adverts
- Applications and CVs
- Shortlisting
- Pre-employment checks
- Data protection and compliance
Key legislation
The two main pieces of legislation that you need to be aware of when it comes to recruitment is the Equality Act 2010 and the Data Protection Act 2018 (GDPR); so these will be our focus here.
The Equality Act we’re naturally always conscious of from a discrimination perspective and the key takeaway is that it applies at this stage as much as it does later in employment.
Data protection and GDPR are both relevant as this is the start point of being a data processor for applications and potential employees.
The decision to recruit and the process
The decision to recruit is not one to be taken lightly, you should recruit when you need to not just for the sake of it!
Costs should be considered, including salary, recruitment costs (when using an external recruiter), pension & NICs.
The business implications of recruitment are also important, such as how it impacts other people – especially where you may be reducing someone’s job or recruiting above them.
The recruitment session, in a nutshell, follows these four bullet points:
- Job posting
- Screening
- Interviewing
- Selection
In this session, I’ll look at these stages and the various legal implications.
Job adverts
Job adverts should include the essential information, such as the job title, the location (including flexible/remote working), the responsibilities involved in the role and the qualifications required.
Details of the application process and deadlines should also be included, firstly to make it clear what is expected of the applicant and when and, secondly, to filter out the less committed applicants.
In the webinar, I asked the attendees whether they include a salary in their job adverts or not. Quite a few people suggested that they include a band or a range, or mention that salary is subject to experience.
A job advert is not contractual and, from a legal point of view, it’s not necessarily important what you include here. However, if you do include salary; an applicant will expect their pay to reflect your offer.
Related: Flexible Working Bill passed - What does it mean for employers?
Discrimination at the job advert stage
There is a risk of discrimination, even at the job advert stage. The majority of these claims come from an applicant missing the opportunity to apply because the job advert was exclusionary.
For example, an ad may be discriminatory on the basis of age if the company is advertising for someone in a certain age bracket (e.g. 25-35).
I’d suggest having your job ads reviewed internally from both a factual and legal/HR perspective. Seek input from those with expertise in diversity and inclusion to ensure you are not being discriminatory and looking to attract the best talent.
Also ensure that your templates are reviewed and updated regularly to maintain ongoing legal compliance.
Related: Disability Discrimination in Applications - An Employer's View
Applications and CVs
The information included on an application form or CV can potentially be personal and in some cases special category data. This can include name, address, DoB, background, school, qualifications etc.
If an applicant discloses a medical condition you have an extra duty to protect that as special category data.
Personal data must be processed lawfully, fairly and transparently, according to GDPR.
To me, this means informing candidates about how data is used and ideally gain their consent through a privacy notice.
Questions you should be asking
How do CVs come through the door? Make sure to consider who has access to any email address where applications are sent.
Are applications reviewed? If so, by who? Make sure to anonymise data and redact any information that is irrelevant to anyone reviewing an application.
If background checkers are being used, for example, you’ll need consent to share an applicant’s information outside the organisation.
Shortlisting
Objective criteria, such as qualifications, experience etc, that is required to be met for a candidate to be considered is key – anything that is too subjective allows for bias which is not about the job itself and a risk of discrimination.
An unconscious bias is one that will affect your decision making, that you are not aware of. For example, you may unconsciously assume that an older applicant is more experienced than a younger applicant.
Those completing the shortlisting process, whether internal or external, as well as anyone else involved in recruitment, need to be aware of the potential for their unconscious biases to arise.
AI Shortlisting
AI sifting and shortlisting has been used in recruitment for a long time but carries risks. AI can be trained (or train itself) to discriminate.
I would recommend introducing a standardised scoring matrix – like for a redundancy but in reverse. This can help make the process transparent and consistent and ensure that all candidates are being judged against requirements.
You should also document the process so you can evidence decision-making if ever questioned, this should include the criteria, decision, who made it and justification.
Even at this stage, feedback to unsuccessful candidates is important. People like feedback, and it will help stave off a discrimination claim.
Pre-Employment Checks
In terms of the purpose of background checks, there are three big reasons: legal compliance, regulatory checks that your business/industry may require and ensuring safe and competent staff are employed.
The main takeaway of pre-employment checks is to be fair and consistent. If you’re going to check people in a certain way check everyone in that way, unless there is a compelling reason not to.
DBS checks
Disclosure and Barring Service (CRB) are necessary for some regulated professions and for any role involving young people or vulnerable adults.
DBS checks are almost always done through a third-party provider to ensure legal compliance and data protection.
Don’t forget that you need the individuals consent in the first place, for checks to be carried out.
Rehabilitation of Offenders Act 1974
This act notes that people with criminal convictions shouldn’t be prevented from getting a job and reintegrating into society. It’s a form of discrimination to refuse to engage somebody at work because they have a conviction on their record.
Most employers cannot ask about spent convictions either, as this will also be treated as a form of discrimination.
Right to work checks
It is a legal requirement that your staff are eligible to work in the UK. This must be documented and there are criminal and civil penalties for failure to comply with this.
Make sure you check that everyone has the right to work in the UK. There is a discrimination risk if you cherry pick who you do and don’t check.
Equal Opportunities and Diversity
The value of diversity in the workplace is bringing in different experiences, backgrounds, expectations into a business and the ability to share ideas and cater to different markets and audiences.
There may also be reporting requirements that do crop up, including pay gap requirements etc, just do be aware of these.
Unconscious Discrimination
The important thing is to recognise unconscious discrimination and accept that you may have made fleeting assumptions or judgements about someone based on their appearance, way they speak or write etc.
Again, this isn't that you are consciously discriminating but rather that those momentary assumptions will influence your thinking.
Ways of mitigating this: blind applications, diverse interview panels and selection/decision makers, structured and objective interviews that are structured around job requirements.
Data protection and compliance
Drawing back to GDPR and those foundation principles, the recruitment process, as I mentioned earlier, is data processing and it is personal and sometimes special category data
Your lawful basis will ideally be the express consent of the individual, but it could also be compliance with legal obligations or performance of a contract in theory. Consent is much safer, however.
Candidates needs to know how their data will be used and give clear and unambiguous consent to it being used in this way - consider external handlers of data. Only share, process and retain what you actually need to.
Related: How to write strong employment contracts - Advice for Employers
Missed this webinar? Sign up for the next one
Don’t worry if you missed this webinar, theres still plenty more to come over the next 12 months as Chris talks you through the employee lifecycle.
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You can also find recordings, slides and summaries of previous webinars here.
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