Most businesses are only too aware that the success of their business sits with their employees. Therefore, when it comes to recruiting new superstars, the employer must not only be looking at a candidate’s characteristics, skillset and experience but also adhere to their legal obligations to ensure they are recruiting within the law.
The way a business recruits can differ greatly from business to business, the one consistent is the legal obligations an employer is under. One of the key legislations regarding recruitment is contained within The Equality Act 2010, which was enforced on 1st October 2010 with the objective of providing a simple and consistent legal framework for preventing discrimination.
The key element is to ensure that no candidate is discriminated against. Protected characteristics protected under this Act include age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnerships and pregnancy and maternity.
What is the first step to recruiting?
Employers will usually need to provide the following documents as a bundle to a job applicant:
- Job description
- Person specification
- Job application form
- Equality and diversity monitoring form (The candidate should send back the equality and diversity monitoring form separately from the rest of their application, anonymously. It should be filled in voluntarily and the form should state that the details will be used solely to build an accurate picture of the make-up of the workforce in encouraging equality and diversity.)
- Information about the employer
- Whether a health check, criminal check or references will need to be obtained.
When preparing to recruit, remember that reasonable adjustments must be made for disabled job applicants. An employer must ask whether an applicant needs any support or access requirements for any part of the recruitment process. Furthermore, if a candidate has indicated a disability on their application form, or the employer becomes aware of it, or the candidate asks for reasonable adjustments to be made, the employer must consider making them.
It’s important to remember that any notes taken during the recruitment process can be viewed by the candidate. Under the Data Protection Act 1998, a candidate can ask to see information held about them – for example, the application form, interview notes and references, or the full personal file if the candidate already works for the organisation. Personal information must be always be handled with respect and in line with the law.
All checks must meet Data Protection Act 1998 requirements – these include that they must be lawful, necessary and fair, and information must be from a trusted source. Where possible, the employer should only check the successful candidate.
UK Wages and working rights
Employers must comply with National Minimum Wage rates which change every October.
Employers must check whether a job applicant is entitled to work in the UK before it actually employs them. It should also check thoroughly that all necessary paperwork is correct and up to date, as an employer can now face up to five years in prison for employing someone whom it has ‘reasonable cause to believe’ is an illegal employee . Also, an employer can be fined up to £20,000 per employee without the right to be employed in the UK.
To avoid discrimination, employers should be consistent in their checking and not simply check recruits they assume would not be eligible.
An employer can ask for details of a criminal record, but if it does it must ask the correct question of the prospective employee. For most roles, an employer is only allowed to ask about what are termed ‘unspent cautions and convictions’ under the Rehabilitation of Offenders Act 1974 (ROA).
However, there are certain types of job where it is necessary to ask a different question. For example, for roles including working with children and/or vulnerable groups, and in healthcare, and certain regulated financial roles. Any business that feels that it needs to perform a criminal check should take professional legal recruitment advice before doing so.
Recruitment legislation can be a complicated legal area and we recommend businesses obtain professional legal advice when preparing their recruitment policies and procedures. This blog is not intended to provide any legal guidance and cannot be relied upon to form recruitment decisions.