Legal implications of recruitment

June 15th, 2011

Recruiting a new employee to the company is a very complex process. From the interviewing and referencing of candidates to the final selection, the process is bound by many laws. These laws are implemented to ensure that;

  1. The recruitment process will be equal and fair
  2. People are not discriminated against on the ground of age, sex or ethnicity
  3. Applicants have the right to work in the UK

After reading this article you will have a good knowledge of the main legal constraints on recruitment.

Advertising stage

  • When placing an ad, always make sure that you do not discriminate against anyone in the process on the grounds of age, sex or race. This can be positively or negatively, for example – “We want a keen young trainee” would be age discrimination. “Man needed for heavy lifting” would be sex discrimination. Only Chinese nationals need apply would be race discrimination. You can only actively discriminate if the characteristic which you require is truly relevant to the job, for example you need a female security officer to conduct searches on women.
  • You should ensure your advertising does not break the law. For example, advertising a job with a salary of £2 an hour would be illegal (minimum wage law) as would advertising a job where people were expected to work continually for more than 6 hours with no breaks (working time directive). A full breakdown of workers basic rights can be found here.

Interview stage

Although it’s desirable to know as much as possible about the applicant, try to ensure you keep the following in mind during the interview:

  • Do not use any sexist comments, even if these are intended as a joke
  • Steer clear of questions such as “are you planning on having children”?
  • Treat people equally and avoid personal bias
  • Try to judge someone’s suitability for a role purely by their skills and experience
  • Should you get a disabled applicant for your job, try to ask questions about how you can help them to do their work in spite of their disability, rather than why the disability stops them doing it. Remember that if a candidate has a disability but is still the best person for the job, you may be able to get a grant from the government in order to provide some reasonable workplace adjustments. Click here to find out more.
  • Try not to over promise during an interview and always give realistic information
  • Do not offer rashly during the interview itself. Even if you offer a job verbally, providing the candidate accepts, even if the paperwork has not been done you may have a legally binding contract.

Right to employment

When you interview an applicant, always check if he/she has a legal right to work in the UK. Anyone in UK or within the EU will have that right automatically. It is important to also do a criminal records check on anyone that will be working with children or in a position of trust.

Statement of employment

Your new employee is now entitled to a written statement of employment within their first two months. This will give all the details of their job such as their salary, hours of work and holiday entitlement. It also clarifies the business’s policies on sick leave as well as the disciplinary and grievance procedure.

Tax responsibilities

When you employ someone to a particular post, during their induction you should collect all their taxation details (P45 etc). When you process their pay, don’t forget that it is your responsibility as the employer to ensure that Pay as You Earn (PAYE) and National Insurance deductions are correctly made, as well as any student loan payments.

Detailed explanations of the relevant legal areas are provided for information below.

Please note that simplifiedrecruitment.com recommend that if you have any doubts about your advertisements you consult a legally qualified person.

1. Discriminatory Advertisements

It is unlawful, except in certain clearly specified circumstances, to advertise for potential employees or contractors to be employed in the UK in a way that indicates or might reasonably be understood as indicating, an intention to discriminate. The quest

ion is whether an ‘ordinary, reasonable person with no special knowledge’ will think the advertisement is discriminatory. If someone quite reasonably concludes from an advertisement that the advertiser intends to discriminate on the grounds of race, sex or disability, the advertisement is likely to be unlawful, whatever the advertiser’s actual intentions.

The legislation has some exceptions which include the exceptions below. However the text of the advertisement should also make it clear to readers why the exception applies to the job.

Sex Discrimination Act

It is possible to restrict a job to members of one sex if being of that sex is a genuine occupational qualification for the job but the circumstances where this may apply are very limited. They include:

  • Where the essential nature of the job calls for a person of that sex for reasons of physiology (excluding physical strength or stamina) or, in dramatic performances or other entertainment, for reasons of authenticity.
  • Where the job needs to be held by a person of that sex to preserve decency or privacy because of likely physical contact or because people are likely to be in a state of undress or using sanitary facilities.
  • Where the work is done at a single sex hospital, prison or other establishment for persons requiring special care, supervision or attention and it is reasonable, having regard to the essential character of the establishment, that the job should not be held by a person of the opposite sex.
  • Where the job involves providing personal services to individuals promoting their welfare or education, or similar personal services, which can most effectively be provided by someone of that sex.
  • Where the job needs to be held by someone of that sex because it is likely to involve working outside the UK in a country whose laws or customs are such that the duties could not, or could not effectively, be performed by someone of the opposite sex.

Race Relations Act

  • When being from a particular racial group is a ‘genuine occupational qualification’ for a job.
  • When an organisation is taking positive action to encourage people from a certain racial group to apply for a job or training because they are underrepresented in the organisation or at certain job levels.

NB. When a job involves working outside Britain the advertisement may call for someone of a particular nationality but it remains unlawful to stipulate the person’s colour, race, or ethnic or national origin.

Both the advertiser and publisher of an unlawfully discriminatory advertisement are liable. Publishers may not be liable if they can show that they reasonably relied on a statement by the advertiser that the advertisement was not unlawful. Advertisers leave themselves open to prosecution if they make false or misleading statements.

Employment Equality (Age) Regulations

  • When being from a particular age group is a genuine occupational requirement for a job- although the circumstances where this may apply are very limited, for example an acting job.
  • Where an employer is taking positive action to encourage people of a particular age or age group to take advantage of opportunities because they are underrepresented in the organisation or at certain job levels.
  • Applicants within 6 months of the 65th birthday are excluded with regards to the terms on which employment is offered.

With regard to the Sex, Race and Disability Discrimination Acts, both the advertiser and publisher of an unlawfully discriminatory advertisement are liable. Publishers may not be liable if they can show that they reasonably relied on a statement by the advertiser that the advertisement was not unlawful. Advertisers leave themselves open to prosecution if they make false or misleading statements. Under the Age Regulations, any third parties who knowingly aid an employer to commit discrimination under the Regulations will be liable. Third parties will not be liable if they can show they reasonably relied on a statement by the employer that the advertisement was not unlawful. Parties leave themselves open to prosecution if they make false or misleading statements.

2. Sex Discrimination Act

The Sex Discrimination Act makes it unlawful for an employer to discriminate against an applicant for a job in an establishment in the UK on grounds which include their sex or marital status:

  • In the arrangements made for determining who should be offered employment.
  • In the terms on which employment is offered, or
  • By refusing or deliberately omitting to offer employment.

Discrimination may be direct or indirect.

Direct Discrimination occurs where someone is treated less favourably on the ground of her/his sex than a person of the opposite sex is or would be treated.

Examples of direct sex discrimination would be:

  • Advertising specifically for a man or for a woman.
  • Failing to shortlist a woman on the ground of her sex, where she met the job criteria as well as a man who was shortlisted.

Indirect Discrimination is where an employer applies a condition, criterion or practice which would apply equally to a person of the opposite sex, but:

  1. Where it is applied to a woman and:
    • Is such that it would be to the detriment of a considerably larger proportion of women than men, and
    • Which the employer cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
    • Which is to her detriment.
  2. Where it is applied to a man and:
    • Is such that it would be to the detriment of a considerably larger proportion of men than women, and
    • Which the employer cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
    • Which is to his detriment.

An example of unlawful indirect sex discrimination is imposing an unjustifiable requirement that a job must be done full-time.

3. Race Relations Act

The Race Relations Act 1976 makes it unlawful to publish advertisements that discriminate on racial grounds, or to make arrangements for such advertisements. Both publishers and advertisers are legally responsible for ensuring that advertisements are lawful.

Direct discrimination occurs when someone is treated less favourably on racial grounds. Racial grounds include not only grounds of race but also those of colour, nationality, citizenship, religion and ethnic or national origin.

Indirect discrimination occurs when rules, requirements or conditions that appear to be fair – because they apply equally to everyone – can be shown to put people from a particular racial group at a much greater disadvantage than others, and the rules cannot be objectively justified. A racial group may be defined by race, colour, nationality (including citizenship), or national or ethnic origin. An example of indirect discrimination is requiring that candidates are UK residents.

How to avoid discriminatory advertisements:

The EHRC’s Code of Practice in employment gives advice on how to avoid discrimination when advertising jobs which are covered by one of the exceptions. Organisations and employers can avoid complaints about advertisements that make use of the exceptions to the Race Relations Act by taking a few simple precautions when drafting their advertisements.

  • Check the job description very carefully and make sure that it is covered by an exception.
  • Describe briefly the nature of the personal services you intend to provide.
  • Explain why these services would be best provided by someone from the same racial group as the clients.

Remember: All advertisements that discriminate on racial grounds are unlawful, so you must quote the section of the Race Relations Act that exempts you from this general prohibition.

Make sure that the advertisement does not include the usual equal opportunities statement that all applicants are welcome regardless of racial origins, etc. Plainly, not all racial groups will be acceptable.

4. Employment Equality (Age) Regulations

The Employment Equality (Age) Regulations 2006, makes it unlawful for an employer to discriminate against an applicant for a job on grounds based on that applicants age:

  • In arrangements for determining who should be offered employment.
  • In terms on which employment is offered.
  • By refusing or deliberately omitting to offer employment.

Discrimination may be direct or indirect.

Direct Discrimination occurs where someone is treated less favourably on the ground of their age. Consequently any minimum and maximum age requirement must be justified by employers. As well as language, advertisers must also be aware of hidden messages that may be present in advertisements such as the pictures used and must also ensure that the advert itself is accessible to a wide audience.

Indirect Discrimination occurs where a rule, requirement or condition that appears to be fair – because they apply equally to everyone can be shown to put people from a particular age group or of a particular age at a much greater disadvantage than others, and the rules cannot be objectively justified.

 

5. Disability Discrimination Act

The Act says that it is unlawful for an employer to discriminate against a disabled person:

  • In the arrangements made for determining who should be offered employment.
  • In the terms on which the disabled person is offered employment, or
  • By refusing to offer, or deliberately not offering, the disabled person employment.

Employers should avoid discrimination in, for example, specifying the job, advertising the job, and the processes of selection, including the location and timing of interviews, assessment techniques, interviewing and selection criteria.

The inclusion of unnecessary or marginal requirements in a job advertisement can lead to discrimination. For example:

  • A stipulation that employees must be “energetic” when in fact the job in question is largely sedentary in nature.
  • Specifying that a driving licence is required for a job which involves limited travelling.
  • Exclusions which do not take account of individual circumstances.
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