Recruitment is an important area for employers to get right as employing the wrong person for the job can often be damaging to a business and its reputation. However, in addition to selecting the most suitable candidate, it is important for employers to take steps to help ensure that the recruitment process does not leave them exposed to claims of discrimination or lead to other difficulties. In this article we look at the top 10 mistakes which employers make when recruiting.
Employers sometimes fall into the trap of producing job adverts which are discriminatory. Care needs to be taken when drafting adverts to ensure that they do not inadvertently fall foul of the Equality Act. Examples include advertising for:
• a Spanish account manager when in fact what is required is an individual fluent in Spanish;
• an Indian chef when all that is required is an individual who has excellent authentic Indian culinary skills and experience;
• a candidate with youthful enthusiasm, which suggest the job is not open to older people.
Employers should take care not only with the text of the advert but also any photographs or other images to ensure that they do not give the impression that the job is restricted to a particular group, for example young men.
Asking health related questions
In general (there are a few exceptions), it is unlawful for employers to ask job applicants about their health and/or any disability until they have been offered a job. Not only does this apply to questions in application forms but also to the interview process and any other part of the process, regardless of how informal, prior to any job offer. Questions about health include asking about sickness absence with a previous employer. Employers who breach this legal requirement may face enforcement action from the Equality and Human Rights Commission. In addition, unsuccessful disabled job applicants might claim disability discrimination. It may be difficult to successfully defend such claims if the individual was advised that he or she was unsuccessful after disclosing a disability and/or any health issue.
Asking inappropriate questions in interview
Questions that do not relate to the vacancy such as “what age are you?”, “do you have/are you planning to have any children?”, “what religion are you?” etc should be avoided. Historically, personal questions have been used as a gentle start to the interview to help the candidate relax. However, such questions can leave employers open to allegations of discrimination and are not recommended. Job applicants who consider that they performed well at interview but were unsuccessful, may conclude that they were discriminated against as a result of particular answers to questions they were asked.
Failing to keep evidence of decisions
It is important to have written evidence of decisions taken in the recruitment process. Employers often have difficulty defending discrimination claims brought by unsuccessful job applicants due to a lack of written evidence of the decision making process. It is recommended that notes are taken during interviews and scores and comments relating to candidates’ performance in interview and their suitability for the job are recorded. Employers are advised to avoid the temptation to be too critical or direct in the notes. Jocular or facetious comments about a particular candidate could come back to haunt an employer.
Failing to follow up references
Most job applicants are asked to provide references and are told that any job offer is subject to the receipt of satisfactory references. Despite this, employers often fail to contact the referees to request a reference. Whilst many organisations have a policy of providing factual references only, with the result that the benefit of the reference is reduced, it is still worthwhile following up on references with the named referees. This helps to ensure that the career history provided by the job applicant is accurate.
Criminal record checks
Employers commonly fall into two traps in respect of criminal record checks:
a) Failure to check: many employers don’t ask job applicants about unspent criminal convictions and/or they fail to carry out criminal records checks with the relevant government agency. This can result in employers recruiting individuals to positions which they would never have considered doing so, had they been aware of their criminal record. Carrying out background checks at the recruitment stage can help avoid problems occurring later on.
b) Asking about spent convictions: in general, it is unlawful to ask individuals to disclose spent convictions. However, there are some exceptions, for example jobs involving working with children. Exactly when a conviction is spent depends on the length of the sentence imposed and some convictions, such as custodial sentences of over 4 years (2 ½ years in Scotland), are never spent. If an employer discovers that an employee has a spent conviction and terminates his or her employment, the dismissal is highly likely to be unfair.
Failing to provide employees with a written statement of particulars of employment
Employers are required to issue employees with a written statement of particulars of employment no later than two months after their employment commences. This is effectively a summary of the main terms and conditions of employment, containing certain specified information including commencement date, hours of work, rates of pay and holiday entitlement to name but a few.
Recruiting during a redundancy situation
Some employers recruit externally in circumstances where some of its employees are either at risk of redundancy or are working their notice where their role is redundant. This could result in the redundancy dismissal being found to be unfair. Where a redundancy situation exists, employers should consider those at risk of redundancy for any vacancy in preference to external candidates. That may involve delaying advertising a post externally or putting the interview process on hold until those at risk have been considered for the role.
Waiting 3 months after a “redundancy” before recruiting
Some employers believe that it is easier and safer to make an employee redundant rather than deal with the true issue, often poor performance or level of sickness absence. The employee is made redundant and the employer then waits for a period of 3 months, the time limit for unfair dismissal claims to be lodged, to expire. The employer then recruits an individual into the “redundant” post.
Employment tribunals do, however, have the discretion to accept unfair dismissal claims after the 3 month deadline has expired, where the employee can demonstrate that it was not reasonably practicable to lodge the claim in time. If the employee can demonstrate that it was only after the 3 month deadline had passed that they became aware of facts indicating that the redundancy was in fact a sham, the Tribunal is likely to use its discretion to allow the claim to proceed.
Lack of training for the interviewers
There is little point in Human Resources being familiar with the dos and don’ts of recruitment if that information is not passed onto the managers who carry out the recruitment process. Having recruitment policies and procedures in place will be of little comfort when a manager asks a candidate if she is planning to have children or suggests that a candidate may be a bit old for manual work etc. Employers should ensure that managers are suitably trained in recruitment and are aware of the potential consequences should they deviate from agreed procedures.
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