Recruitment

The most important legal issue in recruitment is avoiding unlawful discrimination in your recruitment methods and criteria. Check that, by working for you, your new hire is not breaching their notice period, a non-compete restriction or a different post-employment restriction imposed by their previous employer. Otherwise you too may be liable.

Take care to comply with the rules on pre-employment checks and certain questions, including about the candidates’ health, previous criminal convictions and other types of vetting. This is particularly important when collecting personal or sensitive data about potential hires. You must ensure you comply with your data protection obligations under the General Data Protection Regulation and Data Protection Act 2018. For more information, read Data protection and employees.

Check whether or not your potential hire is entitled to work in the UK. You could face prosecution if you employ an illegal worker. The UK Border Agency has a useful guide on how to do this.

Before deciding to permanently hire an agency worker, check the terms of the agency contract.

Complete bans on hiring temps are unenforceable but there may be extra fees to pay. Keep records of your recruitment processes and decision-making, in case of any dispute.

The most effective way to show you did not discriminate in recruitment is to have written evidence of a clear, fair and justified recruitment exercise and decision-making process. The first step is to create a written job and person specification for the hire, taking care to avoid descriptions or requirements that seem indirectly discriminatory. Avoid informal recruitment and advertise your role widely, to encourage diverse applicants.

Take care in drafting the job/person specification and any advertisement, so you:

• avoid words that imply a particular gender (eg waitress) or age group (eg mature);
• focus on experience of specific roles, activities or issues rather than an amount of time.
• If you do specify an amount of experience, keep it as brief as possible;
• think critically about each requirement you specify – it is really needed?
• when referring to qualifications state that foreign equivalents will be accepted.

Don’t ask for excess or irrelevant information eg instead of asking what a woman’s childcare arrangements are, ask if she is confident that she will be able to meet the time and travel commitments associated with the role.

Be culturally sensitive, especially about mannerisms and body language. Don’t ask whether a candidate thinks they will 'fit in'. Use consistent criteria and benchmarked grading to assess different applicants. This is particularly important where multiple interviewers are involved. A scoring matrix can help.

Questions about health are a legal minefield. Medical examinations or information should be dealt with as a condition of an offer, not earlier in the process. Be open about any pre-employment checks and don’t collect more information than you need at each stage of recruitment and don’t retain information longer than necessary.

When you collect personal data about an applicant during a recruitment process, whether this is directly from the applicant or from a third party such as a recruitment agency, you must provide the applicant with an information notice, also known as a privacy notice or fair processing notice. This notice must set out certain required information, including the purposes for which the data will be processed, the legal bases for processing and the period for which the data will be retained. You could provide this information notice on your website, and send a link or copy of the notice in correspondence to individual applicants.

You should also ensure that you have policies in place setting out how long you intend to keep recruitment data. You may need to retain some data for the purpose of responding to candidates or potential employment tribunal claims. You should only keep the minimum data required and for the least amount of time as possible.

Read Using social media in recruitment for more information about social media and recruitment during checks and processes.

Make sure the terms of an employment offer, including any pre-conditions, are totally clear and recorded in writing, so there is no room for confusion or disagreement. Make sure the employment terms are clearly recorded in a signed offer letter or employment contract before the employee starts work. Offer letters should say that the contract takes priority.

Follow the Checklist for new employers when you are hiring a new employee.