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Winning the recruitment game

David Gray-Jones Thursday, July 20, 2017

The Brexit vote and subsequent uncertainty about the status of EU nationals currently working in the UK is having an impact throughout the labour market. One of the reported consequences has been a rise in recruitment costs, with businesses having to pay significantly over the market rate to attract the individuals they want, as the 'skills gap' widens. Getting your recruitment right is going to be increasingly important for organisations as competition for talented individuals increases.

Don't ignore the law

There's a lot in recruitment that's about your organisation's image, about branding, about marketing your business to attract the right kind of candidates - but don't ignore the fact that there's a raft of legislation underpinning many recruitment practices, backed up with plenty of case law. If your recruitment activity breaches these rules, the consequences can be serious.

Guard against discrimination

A key employment law issue to watch out for in the recruitment process is discrimination. The Equality Act 2010 defines 9 'protected characteristics': age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity. Direct and indirect discrimination based on any of these protected characteristics is unlawful  (unless, in relation to indirect discrimination based on all protected characteristics or direct discrimination because of age it can be justified as being a proportionate means of achieving a legitimate aim).

There are many different scenarios which could give rise to discrimination in the recruitment process, for example in relation to selection tests.  It is worth bearing in mind the recent case of Government Legal Service v Brookes UKEAT/0302/16/RN which found that the Government Legal Service (GLS) had indirectly discriminated against an applicant with Aspergers syndrome in the use of a multiple choice Situational Judgment Test as part of its recruitment process. The GLS had also failed in its duty to make reasonable adjustments, and had treated her unfavourably because of something arising in connection with her disability. Terri Brookes succeeded in arguing that the GLS should have allowed her to answer the test using short narrative written answers rather than using the 'multiple choice' options that the test ordinarily required. The EAT agreed that the GLS had indirectly discriminated against Ms Brookes. Although the use of psychometric testing served a legitimate purpose, it was ultimately disproportionate.

The interview minefield

As the BBC recently reported, it seems that interviews can still be a minefield of discrimination. Unlike the psychometric tests considered in the Brookes case, asking questions about whether someone might not have enough energy for a particular role (age discrimination), or whether they might leave to have a baby (sex discrimination) are likely to be directly, rather than indirectly, discriminatory. If this is the case, there is no possibility of justifying the discrimination, other than in cases of age discrimination (as noted above).

Employers should be careful to ensure that anyone involved in interviewing understands the importance of only asking questions relevant to the candidate's ability to do the job. Questions or comments relating, even obliquely, to any of the protected characteristics simply should not be asked. 

Probationary periods

Many organisations use probationary periods as a chance to assess new candidates in post, and reserve the right to terminate the employment should performance during probation be unsatisfactory. It's worth remembering that the 'probationary period' has no special status in employment law terms. Although new recruits do not ordinarily have the right to claim unfair dismissal until they have been employed for a year, a number of other employment rights do apply from the start of employment. Rights not to be unlawfully discriminated against, rights under the working time legislation, the right to the National Living Wage, all apply, as do rights to time off in certain circumstances.

If your organisation does operate a probationary period, you should make clear the performance standards that are required, and how performance will be reviewed at the end of probation.

Statement of Terms and Conditions

Most employees are entitled to receive a written statement of the main terms of their contract of employment no later than 2 months after the employment begins. This is not a contract of employment - simply a summary of the main terms. If no written contract is ever forthcoming, the written statement stands as strong evidence of what the contract includes.

We are employment law specialists covering London and the South East of England. We provide practical advice to employers and employees on the full spectrum of employment law rights and obligations.  If you have concerns about your recruitment practices, or would like to discuss the implications of introducing new stages in to your recruitment such as psychometric testing, get in touch. Equally, if you feel you have been put at a disadvantage during a recruitment exercise, we can discuss whether you may have a claim. 

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