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, especially when collecting personal or sensitive data about potential hires. You must also ensure you comply with your data protection obligations. For more information, read Data protection and employees.

Bear in mind that:

• you need to check whether all potential hires are entitled to work in the UK. Failure to do this may result in fines of up to £20,000

• you may need a sponsor licence if you’re hiring someone based outside the UK

• you should check the terms of the agency contract, before deciding to permanently hire an agency worker

• complete bans on hiring temps are unenforceable but there may be extra fees to pay 

• you should keep records of your recruitment processes and decision-making, in case of any disputes

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.

Protected characteristics

To prevent discrimination, avoid asking questions about 'protected characteristics' (eg sex or race) at all recruitment stages unless necessary. For example, you: 

• must not ask applicants about their marital status

• must not ask applicants if they have children or plan on having children

• can only ask for applicants’ dates of birth if they need to be of a certain age to do a job (eg must be over 18 to sell alcohol)

• may only ask about health or disability to determine if an applicant needs assistance during selection testing or an interview

• may only ask about health or disability if necessary requirements of the job cannot be met with reasonable adjustments

For more information, see the Government’s guidance.

Job specification and advertisement

The first step is to create a written Job description and personal 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 spec and any advertisement. Bear in mind that you typically cannot refer to protected characteristics in a job advert. Make sure to:

• avoid words that imply a particular gender (eg waitress) or age group (eg mature)

• focus on the experience of specific roles, activities or issues rather than an amount of time

• keep it as brief as possible, if you do specify an amount of experience

• think critically about each requirement you specify and if it is really needed

• state that foreign equivalents will be accepted when referring to qualifications

It is recommended to advertise vacancies in at least two channels (eg in newspapers, on social media platforms and on different job websites) to reach a wide range of possible applicants and avoid claims of discrimination.

Selection process

Unless required to do so by a business policy, you do not typically need to interview someone before offering them a job. However, conducting an interview is a good way to determine whether an applicant is right for the position and help avoid potential discrimination claims (eg people who could do the job being overlooked).

In order to avoid possible discrimination claims, it is recommended that at least two people are involved in the selection where possible. 

When reviewing applications and selecting applicants for the next recruitment round, you should consider which applicant best meets the job description and person specifications. To ensure that applications are assessed as fairly as possible, it is recommended that a consistent decision-making process (eg a scoring matrix or checklist) is used.

Where the selection process involves selection testing, any such tests should be reviewed and signed off by the HR department, to ensure the test:

•  is free from any discriminatory element, and

• assess only objective requirements that are necessary for the role

Interview

It is recommended that, before interviewing applicants, you prepare questions (which must not discriminate) to ask. As with the selection process, it is recommended that, where possible, at least two people conduct interviews to reduce the risk of discrimination.

In certain circumstances, you may ask applicants about their protected characteristics (eg age, race and disability). You may, for example, ask:

• applicants if they need any reasonable adjustments (eg ensuring your office is accessible to disabled applicants)

• about protected characteristics to complete equality and diversity monitoring forms, designed to help check your business follows the law when recruiting

• health-related questions only to:

  • determine if an applicant can carry out an essential job function

  • take ‘positive action’ to assist anyone with a disability

  • monitor if an applicant has a disability (without revealing their identity)

  • check if an applicant has a disability where this is a genuine requirement of the job

Any questions about protected characteristics should first be approved by the HR department.

Remember not to ask for excess or irrelevant information. For example, 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.

After interviewing applicants, make sure to treat them fairly and equally when deciding who to offer the job to. As with the selection process, it is recommended that you use a consistent decision-making process (eg a scoring matrix or checklist).

Other points to consider

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.

Bear in mind that you should avoid using any information on social media profiles when deciding whether to interview or hire someone. Doing this may break the law, especially if:

• applicants did not consent to their information being used in this way

• you only look at some applicants’ social media profiles

You can typically use the information provided on business social networks (eg LinkedIn) or job websites as this information is intended to showcase work experience and professionalism to prospective employers. Read Using social media in recruitment for more information about social media and recruitment.

Consider offering equal opportunities training to anyone involved in the hiring process, to ensure that they are familiar with discrimination laws and how they apply to the recruitment process. While this is not necessary, it makes those involved in the recruitment process aware of their responsibilities and may help provide a defence in any discrimination claim.

Be open about any pre-employment checks and don’t collect more information than you need at each stage of the recruitment process and don’t retain information longer than necessary.

Right to work checks

You must check all potential employees to ensure that they have the right to work in the UK before you hire them. For more information, read Work permits and employing overseas workers.

Medical checks

Be aware that 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. You must also ensure that medical checks do not discriminate (eg by targeting certain age groups only) or discourage anyone from applying. 

You can only ask successful applicants for medical checks before hiring them if:

• it’s legally required (eg for eye tests for drivers of commercial vehicles)

• the role requires it (eg insurance providers require health checks on cycle couriers) 

Details of health checks should be clearly set out in your Job offer letter and you must gain written consent before asking for a report from an applicant’s doctor. Note that applicants are allowed to view a copy of this report and can ask for it to be changed or withheld.

Criminal record checks

You can check an applicant's criminal record regardless of the role in question. Criminal record checks are known as ‘Disclosure and Barring Service (DBS)' checks. For certain roles (eg childcare or healthcare roles), you may be eligible for more detailed DBS checks. For more information on DBS checks, see the Government’s guidance.

Data protection considerations

When you collect applicant personal data during the recruitment process (whether directly from the applicant or from a third party, eg 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 may provide this information notice on your website, and send a link or copy of the notice in correspondence to individual applicants. Ask a lawyer if you require a job applicant privacy notice.

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 possible.

Make sure the terms of an employment offer, including any pre-conditions, are clear, easy to understand 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.

Read Employment documents for details on the information and documents you need to provide to new staff. Follow the Checklist for new employers when you are hiring a new employee.