Happy New Year!
As it’s the start of a new year, my monthly HR blog series is starting right at the beginning of the employment journey, with recruitment.
Recruiting the right people is crucial for success, but it can also be a tricky process.
Where do you start? How do you attract good candidates and spot the best ones? What should you include in job offers and contracts to be legally compliant and avoid issues down the line? As an employer, these are all things you need to consider to build a great team. Getting recruitment right will save you a lot of time and money in the long run.
The Equality Act 2010 explains that discrimination in recruitment and selection is illegal. Individuals can bring a claim against an employer for discrimination during recruitment. So there are risks to the business even before someone is employed. If you are recruiting your first person, growing a team, or have an established workforce, you need to make sure the business is compliant with employment law.
This guide will walk you through the key steps - from writing an eye-catching job ad to conducting objective interviews and making the perfect job offer. You’ll learn the legal stuff you need to know to avoid unlawful discrimination claims.
Most importantly, you’ll gain the insights you need to find employees who are the perfect fit for your business.
Creating Compliant Job Adverts
Creating job adverts that comply with employment laws and are free from discrimination is crucial. Get it wrong and you could face legal trouble before even hiring someone.
First, when posting a job advert, be careful not to include any wording that could be seen as discriminatory. Avoid specifying age, gender, religion or mentioning anything unrelated to the requirements of the role. Stick to listing the key skills, experience and qualifications needed for the position. You can state requirements like a certain level of education or years of experience in an industry if it is necessary for the role, but avoid being too narrow or specific.
Second, be transparent. Clearly outline the key duties, responsibilities and necessary qualifications or experience. Don’t exaggerate or misrepresent the role. And specify things like work hours, salary, probation period and benefits. This helps set the right expectations and attract experienced and genuinely interested applicants.
Third, watch your wording. Certain phrases like ‘high energy’ or ‘dynamic’ can imply a bias towards younger candidates. Use objective terms and avoid implications. An advert that implies a preference for people of a particular age, such as a school leaver or a parent to work during school hours, which cannot be justified would be discriminatory and unlawful.
If someone of an age outside the range indicated in the advertisement applied for the job and was not successful, he or she could claim age discrimination and use the advertisement as evidence to support the claim.
Lastly, consider diversity. An open, inclusive job advert will state that you value diversity and encourage applicants from all backgrounds. You can also expand your media reach to include more diverse channels. A more diverse range of applicants means a better chance of finding the best person for the job.
Creating thoughtful, fair and transparent job adverts is well worth the effort, with links to a clearly defined job description and personal specification for the job. This is the foundation of a fair, inclusive and objective recruitment process and can be used to support non-discriminatory practice.
It can also help build a positive brand, attract top talent and avoid legal trouble—all while giving your recruitment the best possible start. Focusing on skills, being objective and valuing diversity will stand you in good stead.
A job description and a personal specification are not a legal requirement. However, they provide a foundation for a fair, inclusive and objective recruitment process and can be used to support non-discriminatory practice.
The job description and a personal specification are also essential tools to use throughout an employee’s journey in your business; to continue in the recruitment process, induction, probationary period, performance management and staff development.
And don’t forget, in a world of social media where candidates can share their experiences online, poorly designed recruitment processes can negatively impact the ability to attract good applicants.
Conducting Lawful Interviews
Conducting interviews is a crucial part of the recruitment process. As an employer, it's important to do it properly to find the best candidate for the job. At the same time, you need to ensure the process is lawful and fair to all applicants.
Preparation is key
Recruitment is a time-consuming and expensive process for any business, so getting it right at both the recruitment and the selection stages is vital, particularly in today’s market when most organisations are finding it difficult to recruit the right people.
Do your homework beforehand. Review the job description and personal specification and determine shortlisting criteria and interview questions. Interviewing fairly and objectively to protect the business against possible tribunal claims is essential:
Ask interview questions based on the job description and personal specification, CV, application form and any test results
Take clear and concise interview notes
Score answers objectively, to enable unbiased comparisons
Remember job applicants have a right to see interview notes – be mindful of what you write!
Data Protection - discard unsuccessful applicants’ data after 6 months
Questions not to ask during interviews
When interviewing applicants, there are certain questions not to ask. Including questions about a candidate’s age, whether they’re planning to have children and whether they’re married – all of these are considered discriminatory. Asking questions about any of the protected criteria could break the law and lead the business to a tribunal.
According to an article in HR Magazine, a woman was asked her age during an interview with Domino's Pizza and was turned down for a job. She received over £4000 in an age discrimination dispute. The article explains, "Janice Walsh applied for a job as a delivery driver at a Domino's franchise in Strabane, Northern Ireland. The first question she was asked during the interview was about her age, and the interviewer wrote the number down on paper before stating 'she didn't look it’.
When turned down for the job, Walsh believed she was discriminated against due to her age. She contacted the store to raise her concerns and was told that the panel were unaware that it was inappropriate to ask someone their age during an interview.
Questions during the interview process should focus solely on the applicant’s ability to perform the essential functions of the job. Keep the discussion centred around the candidate’s relevant skills, work history and strengths.
Ask open-ended questions
Pose open-ended questions to get a sense of the candidate's thought process and see how they articulate their answers. For example, "Tell me about a challenging work situation and how you overcame it." Follow up with probing questions to get clarification or more details. And avoid yes or no questions.
Be consistent
Have the same person or panel interview all candidates where possible. Ask a core set of questions to every candidate, and take notes to compare candidates objectively. This helps avoid biases and ensures a fair assessment based solely on the requirements for the job. Supplementary questions can be added to help rephrase questions and clarify information, but remember the interview should not turn into an interrogation. Making the candidate feel relaxed is crucial both during online and face-to-face interviews, as this will help to get a true picture of their skills, experience and behaviour.
Take interview notes and make a decision promptly
Review all interview notes and determine the best candidate for the role based on their skills, experience and knowledge and how well they align with the company culture. Contact the successful applicant promptly with a job offer, and notify the other candidates that the role has been filled. Provide constructive feedback if requested.
Not taking interview notes could lead the company to an employment tribunal.
Previous employment tribunal cases demonstrate the need for a set of robust interview notes.
In the case of Munck V NUI Maynooth, an Argentinian Professor claimed he was discriminated against based on age and race.
He claimed he was the most experienced and qualified candidate for the job, which was given to a younger Irish candidate.
According to an article in the Irish Times, the tribunal ordered a review of the selection process, “According to the tribunal, in the absence of any notes of the interviews, and given the comments made in the summary report after the interviews, the equality officer was not satisfied that Maynooth was able to rebut the presumption of discrimination. Accordingly, the Equality Officer found that the respondent had discriminated against Prof Munck on the grounds of race”.
By following these guidelines, you'll find the ideal candidate for the position in a professional, lawful manner.
The Importance of the Candidate Experience
Remember, these days candidates want to find out about your company and if it’s one they want to work for.
Here are some top tips for you to think about whilst interviewing to ensure the experience is a positive one for candidates:
It should not be seen as a test where no assistance can be provided or where candidates should feel they might be caught out by trick questions.
Don’t pressure the candidate into answering, if they are struggling try and rephrase the question and move on to the next.
Be aware of your tone of voice and body language and do not talk too much yourself.
Allow for silences and pauses, the candidate will need time to think.
Remember you are conducting an interview, not an interrogation.
You do not want to scare off promising applicants while trying to deter suitable ones.
It is important therefore to ask questions and explore answers in a non-threatening matter-of-fact way.
And don’t forget, in a world of social media where candidates can share their experiences online, poorly designed recruitment processes can negatively impact the ability to attract good applicants.
What do you do to ensure a candidate has a great experience during the recruitment process?
Making a Job Offer
Once you’ve found your ideal candidate, it’s time to make a formal job offer to officially welcome them aboard. However, there are a few legal considerations to keep in mind to ensure the offer is binding and protects both parties.
Make the offer in writing
Verbal offers can easily lead to misunderstandings and “he said, she said” situations. Provide the candidate with a written letter of a ‘conditional’ offer that clearly spells out the terms and conditions of employment. This includes things like job title, salary, benefits, work hours, probationary period, start date and requirements of the offer, such as qualifications, references, right to work in the UK evidence and criminal records checks.
Why a conditional offer? Because if the conditions aren’t satisfactorily met then it is much easier to withdraw a job offer.
As ACAS (https://www.acas.org.uk) explains, “An employer can withdraw a job offer. How they can withdraw depends on whether your job offer was 'conditional' or 'unconditional’. By law, an employment contract could begin as soon as someone accepts a job offer, even if they only accepted it verbally. Therefore, an employer should not withdraw the offer without also ending the contract.”
Include an acceptance deadline
State that the offer is open for the candidate to accept within a certain number of days, typically 3 to 5 business days. This avoids the offer lingering indefinitely and allows you to move on to other candidates if it’s rejected. Once the deadline has passed, the offer is considered withdrawn.
Have the contract reviewed
Before presenting the offer to the candidate, review the employment contract, to spot any outdated clauses that violate employment laws or put the company at risk. Mistakes and errors in contracts often occur when information is cut and pasted from previous employee contracts, or other companies. It’s best to get this checked to avoid unlawful employment practices that pose potential issues down the road.
Negotiate final terms
There may be certain points in the offer that the candidate wishes to negotiate, like a higher salary or extra holidays. Be open to negotiating in good faith to reach an agreement that satisfies both parties. If major changes are requested that you’re unable to accommodate, you may need to withdraw the offer.
Get written acceptance
Have the candidate review, sign, and return the final employment contract to you before their start date. Their signature legally binds them to the terms of employment and confirms their acceptance of the position. Once signed, you can officially welcome them to the team!
Following these steps will ensure you make a legally sound job offer and have it properly accepted in writing by your new recruit before they start work. A fair, well-documented hiring process benefits both employer and employee. And sets the standard for the working relationship going forward.
Don’t forget that timescales and communication are crucial when making a job offer to a candidate. Many businesses lose out on the best talent because they’ve spent too long deciding whom to offer the job to.
If you follow these best practices through each stage of the recruitment process, you can feel confident you have given every applicant a fair chance and avoided the risk of potential claims of unlawful discrimination. Creating an inclusive hiring process where all feel welcomed and evaluated based solely on merit will lead to finding the best person for the role.
Employment Contracts
The Employments Rights Act 1996, states that any employee or worker whose contract started on or after 6 April 2020, is entitled by law to receive a written statement of particulars on or before their first day of employment.
A written statement of particulars is often referred to as a contract of employment or terms and conditions of employment. It can also be a letter, as long as the written statement contains all the required information and key clauses, in accordance with The Employments Right Act.
An employment contract is not just written terms, there are several different types of terms:
Express terms – agreed between the employer and employee, usually in writing (such as pay, hours and job role)
Implied terms – terms too obvious to be written. For example, the employer will provide reasonable working conditions and environment. The employee will carry out reasonable, lawful instructions given by the employer.
Statutory terms – part of employment law. For example, the national minimum wage, and the right to minimum notice period, these terms are implied in every contract of employment.
Incorporated terms – from other sources, such as a staff handbook
Dismissing an employee for requesting a written statement of particulars or missing information will automatically be unfair, no matter how long someone has been employed, as the employee would be asserting a statutory right.
Employees have the right not to be dismissed for requesting a written statement of particulars or missing information.
Top Tips: Contracts of Employment
Issue a contract of employment/written statement of particulars on or before the first day of employment.
Remember contract terms of employment are not just written.
Things that have become custom and practice in an organisation can be deemed as contractual terms.
Employers should comply with a request of a written statement of particulars/contract of employment or missing information, within one month
Recruit with Confidence
So there you have it, the basics of what every employer needs to know about recruitment. While the process can be time-consuming, following best practices around advertising roles, structured interviews and fair job offers will set you up for success. And of course, ensuring your contracts of employment are up to date with the latest employment law requirements, will give you peace of mind that you’ve covered all the legal bases.
Recruiting the best people is challenging, but also rewarding. Get it right, and you’ll build a team of superstars. Get it wrong, and it can be time-consuming and costly. But if you go in armed with the knowledge of what matters, you’ll be well on your way to hiring the employees that will drive your business into the future.
"Hiring the right people takes time, the right questions and a healthy dose of curiosity"
- Richard Branson -
For HR resources that will help support your people, whilst protecting the organisation, take a look at our resource page: https://www.thehrhero.co.uk/resources
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