The Recruitment Process: Part One.

Following on with our ‘Employment Law – Simplified’ segment, our next instalment is on:

The Recruitment Process

(Part One)

In Part One, we will outline the laws and codes of practise for those recruiting new workers. We will introduce you to the Equality Act 2010 and its relevance to the selection process. We will also outline the selection process of candidates with a criminal record and introduce you to the Rehabilitation of Offenders Act 1974.

The law of the Recruitment Process

The best recruitment process is one that is thorough and legal whilst transparent and affective, thus eliminating the risk of discrimination as far as reasonably possible.

If an employer is found guilty of selecting a candidate on grounds other than merit, this may result in a tribunal, fines and negative publicity for the company, especially if the case is particularly controversial and high-profile.

Fortunately, once the correct procedures are in place, the recruitment process is not only straightforward, but actively builds a competent and diverse workforce.

The Equality Act 2010.

This Act is a key piece of legislation that underpins the best recruitment practise. It superseded a number of previous acts, including the Sex Discrimination Act 1975 and the Race Relations Act 1976 and aims to prevent discrimination in the workplace with its simpler description of such actions. It is based on the shared principle that a more diverse workforce is healthier by improving overall fairness and equality in society, encouraging allocation of jobs and resources are based on merit, as opposed to characteristics such as sex and race, and provides an equal standard for all candidates to be measured against.

Recruitment

With regard to recruitment, the Act means that it is illegal to treat someone else less favourably. An example of this would be refusing someone the position, even though they are well-qualified, due to particular characteristics. These are sometimes categorised as ‘protected characteristics’ and include the following:

-       Age

-       Sex

-       Pregnancy/Maternity status

-       Disability Status

-       Gender reassignment/being transgender

-       Race and sexual orientation.

The Act also specifies that no-one should be treated unfavourably on the grounds that they are married or in a civil partnership.

Advertising the position

When advertising for the job, it is important that the wording of the notice does not imply or state that those involved in the selection process will discriminate against anyone with a protected characteristic. You can state that the ideal candidate for the role would have a certain level of experience as long as it is a true reflection of the role and in no way tied to age. Wording such as ‘recent graduate’ would suffice but ‘a young ambitious individual’ would not be acceptable.

Interviews

During the interview stage or any other point in the recruitment process whereby applicants are required to give personal information, it is against the law to ask any questions directly or indirectly pertaining to any protected characteristics. For instance, it would be not be acceptable to ask someone about their race or religion. Neither is it lawful to enquire whether the applicant has any children, intend to have any children, or if they are married or in a civil partnership. The reason behind this is because, no matter the answer, it should make no difference to the decision of whether to accept the candidate nor do these factors affect this person’s ability to carry out the job.

There are however, three exceptions:

-       If a job cannot be reasonably done, even with reasonable adjustments, such as flexible working time or provide extra equipment.

-       If the employer is looking to take positive action by seeking to recruit a suitably-qualified person with a disability.

-       If an employer is looking to ascertain whether a potential candidate is in need of assistance during the selection process.

Positive Action Employment Scheme

The Act also makes provisions for ‘positive action’ which provides a framework by which an organisation makes a decision between two or more equally-qualified applicants. In order to increase diversity, it is permissible for an organisation to choose someone from a minority or disadvantaged group, as opposed to someone from the majority.

This does not mean that the best person for the job should not be successful in the recruitment process, simply that, when an organisation has the opportunity to select a qualified candidate from a minority background, they should strongly consider taking it.

Equal Opportunities Monitoring Forms.

Although not compulsory, many organisations now ask applicants to complete an equal opportunity monitoring form, as part of the application process. These should be anonymised and stored separately from the applicant’s CV, cover letter and other recruitment documents, so that it does not affect or influence the interview in any way.

The purpose of these forms are to ascertain how many people from various groups and backgrounds feel comfortable applying for these roles and how many are recruited. This data will then help companies adjust its recruitment strategy in order to encourage a more diverse range of people to apply for job and if necessary, to investigate why particular groups of people apply for positions but do not proceed past the application stage.

The Rehabilitation of Offenders Act 1974

It is illegal to discriminate against someone based on the existence of any spent criminal convictions.

Organisations must approach the situation as though the conviction had never been given. Although there are some sectors and jobs that are exempt (such as care homes and schools).

Types of Convictions:

Spent Conviction - A spent conviction is a sentence lasting four years or less in duration. After a certain period of time, referred to as the rehabilitation period, the conviction is considered spent, meaning that in most cases, the person no longer has any obligation to inform a prospective employer of their history. Criminal cautions are immediately spent and therefore do not need to be declared. Conditional cautions have a three-month rehabilitation.

Custodial Sentence - For custodial sentences between 0-6 months, the rehabilitation period is two years. For sentences between 6 to 30 months, this is 4 years. For those lasting 30 months to four years, the period is 7 years. Any custodial sentence lasting longer than four years will never be spent.

If an employer asks a prospective candidate to detail whether they have any in spent convictions, an individual is obliged to disclose them. This may well result in rejection for the position, but such decision would be lawful.

Disclosure & Barring Service

In the UK, such background checks can be carried out by the Disclosure and Barring Services (DBS). However, obtaining such a check is not quite so simple. The employer has to have ‘good reason’ for the check with the DBS officially stating that ‘before an organisation considers asking a person to apply for a criminal record check, they are legally responsible for ensuring that they are entitled to submit an application for the job role’. In other words, there must be a valid reason as to why a candidate for a particular job needs to be investigated. Minor offences such as driving a vehicle whilst under the influence of alcohol may be ‘filtered’ from the check, but serious offences, such as sexual assault, will always show up in the results. Checks will reveal not only whether an individual has spent or unspent convictions but will also inform a potential employer as to whether they have been barred from working with children or vulnerable individuals. If an individual has an unspent conviction, they are legally obliged to answer ‘yes’ at the selection process when questioned about criminal convictions. However, should the employer not ask at the interview or selection phase, there is no obligation on the candidate to disclose the information; it is illegal to discriminate against a worker if it later transpires that they have a criminal record.

Next week’s post.

Part Two will direct you on the area of UK eligibility with the Immigration, Asylum and Nationality Act 2006. Give you an overview on Data Protection Laws and how they dictate the way in which data pertaining to applicants is stored and processed. Then finish with the best practise in relation to lawful and affective recruitment.