Recruiting a new employee is a key decision for any business.  Get it right and you will reap the financial benefits; get it wrong and the result is a significant waste of both cost and time.  

An employer can face a number of pitfalls when recruiting a new employee and it is important to identify and avoid those by following best practice throughout the recruitment process. 

Before starting the recruitment process, an employer should look critically at existing practices within the organisation and ensure all staff involved in the process have had training on diversity, equity and inclusion. It is advisable to check that the terms of any diversity, equity and inclusion or recruitment policy are up-to-date, and factor in any other policy requirements when recruiting. 

Prepare for each stage of the recruitment process 

An employer needs to consider and prepare for each stage of the recruitment process which include those highlighted below. 

Identifying the vacancy 

What does the business require?  Careful thought needs to be given to understanding exactly what the business requires. Unless this has been properly identified, the process is likely to waste a lot of management time refining what is needed. 

A new recruit may not need to be an employee at all but could be an agency, another type of worker, a consultant, or a service provider.  All have differing contractual arrangements and requirements.    

Assuming an employee is to be recruited, salary ranges need to be carefully considered.  The salary level needs to be considered in the light of existing employees’ salaries as well as market rates.  The vacancy will need also to be advertised as full-time, part-time, or as a job share. If the job will be advertised on a full-time basis, ensure there is an objective justification for this requirement. Further consideration should be given to whether the job can be performed from home, hybrid or flexible working or as part of a job share arrangement. 

Preparing a job description and person specification 

The job description should cover the main purpose and objectives of the job, the job holder's position in the employer's organisational structure, as well as the main tasks and responsibilities associated with the job. 

The job specification should detail the experience, knowledge, qualifications, skills, abilities, and behavioural attributes needed to perform the job effectively. 

All requirements should be objectively justified as necessary for the job in question and should not indirectly discriminate against any group of individuals. Requirements may include specific qualifications, minimum number of years' experience, ability to travel, and availability to work specific hours, between certain times, or at a particular location. 

Advertising the vacancy 

It is generally considered best practice to advertise all vacancies internally and externally. However, it may be appropriate to advertise internally only where a specific reason exists, such as where there are existing employees at risk of redundancy. 

There are various platforms available to advertise externally, such as specialist publications, agencies, websites and other platforms to reach different communities, ages and sexes. Adverts should specify the organisation's commitment to diversity, equity and inclusion and ensure that any agency is instructed accordingly. 

Equal opportunities monitoring  

So that the employer can monitor the diversity of applicants and interviewees, candidates can be asked to complete an equal opportunities monitoring form.  Information on an applicant's racial or ethnic origin, physical or mental health, religion or similar beliefs and sexual orientation is special category data under the UK General Data Protection Regulation and Data Protection Act 2018 and should be anonymised and separated from the application before the shortlisting stage. 

Shortlisting and selection 

Where possible, more than one person should be involved in the short-listing process, to reduce the possibility of any individual’s bias prejudicing an applicant’s chances of being selected. The employer should decide on the interview process and the number of interviews each candidate will need to attend. Similarly, they will need to decide the format of the interview; whether it is one-to-one or a panel. Throughout the interview process, the diversity of the organisation should be represented to the candidate.  

If aptitude tests are to be used, they must not be discriminatory in any way. If artificial intelligence (AI) is used, consider how and when humans can intercept the process and decision-making, as well as how best to address any transparency void that occurs in some cases where an AI tool has been provided by a third party. 

Interviewers need to be thoroughly briefed and reminded that any notes they write during interviews may potentially be disclosed at a future date.   

During the interview, candidates should be asked the same interview questions. Notes of each candidate's answers and the interviewer's scores should be taken and retained. Candidates should not be asked about their personal life or questioned on areas that are not relevant to the job in question.  

Where a candidate requests feedback, be prepared to give this in writing or orally. Feedback should be objective and given in accordance with any written policy. 

Considering the legal issues when preparing to recruit 

Discrimination  

Discrimination, victimisation and harassment in recruitment are prohibited by sections 39 and 40 of the Equality Act 2010 (EqA 2010) in relation to nine specific "protected characteristics". The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex; and sexual orientation. 

In certain circumstances an employer may have a defence to an act of discrimination that is otherwise unlawful. The EqA 2010 provides several exceptions which apply across most of the discrimination strands.  

These include occupational requirements, positive action and statutory provisions that allow or require "discriminatory" treatment. Discriminatory treatment can be in relation to the protection of women, the interests of national security, and when an employer is providing benefits to the public or a section of the public. 

There are also a number of exceptions set out in the EqA 2010 that are stated to specifically apply in relation to a particular protected characteristic. 

Data protection  

Applicants are data subjects who provide personal data to prospective employers who, as controllers, process that data. From the beginning of the recruitment process, an employer should keep a paper trail, ensuring compliance with the Data Protection Act 2018, the Employment Practices Code, and any relevant company policy or procedure. 

Statutory Codes of Practice 

To support the EqA 2010, the Equality and Human Rights Commission (EHRC) produced the Employment Statutory Code of Practice (the EHRC Code). The EHRC Code encourages employers  to open up employment opportunities to a wide pool of candidates to ensure access to the best talent available. It also encourages employers to follow a clear and objective selection process, and to avoid stereotypical assumptions about who is likely to be the best candidate for the job. When preparing the job description and person specification, ensure that it corresponds with any relevant provisions in the EHRC Code: The Code covers discrimination in services and public functions as set out in Part 3 of the Equality Act 2010 and discrimination by associations. Part 2 addresses how to avoid discrimination in recruitment. 

The right to work in the UK and immigration 

It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay. Therefore, an employer is required to take steps to prevent illegal working and to ensure their employees have the right to work in the UK.  

There are obligations and sanctions imposed on employers under the Immigration, Asylum and Nationality Act 2006 and extended by the Immigration Act 2014. Penalties and further tightening of measures to prevent illegal working are contained in the Immigration Act 2016. 

For further information or assistance please contact our employment team. 

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