01 Feb 2016
It is essential that you get the right candidate as recruitment can be a costly and time-consuming business. There’s also legislation governing discrimination that employers need to be mindful of to avoid future claims of unlawful discrimination, says Amy Paxton, Manager & Senior Legal Adviser at Croner. Essentially, to avoid unlawful discrimination claims, employers should judge job applicants against a range of objective criteria, e.g. skills, knowledge and experience and not personal factors. Before an ad has even been placed, employers should carefully prepare a job description and person specification to prevent any discriminatory elements. Shortlisting Shortlisting should be undertaken consistently and against the objective criteria set out in the job description and person specification. An employer’s decision not to shortlist an applicant can be challenged at an employment tribunal if it believed to amount to unlawful discrimination. If there are clear, non-discriminatory reasons for the non-selection, then the employer should be able to defend the case successfully. Interviews Interview questions should relate to the requirements of the job and be presented objectively. A good tip is to prepare questions and topics for discussion in advance and aim to cover similar areas of questioning for all candidates. Avoid discussing issues such as unsocial hours, mobility, or child care arrangements in different ways between men and women based on the assumption that women have child-care responsibilities. Additionally, avoid asking questions that would require the applicant to disclose his or her age and be aware of the risk of subjective biases and stereotyping affecting the interviewers’ judgments. Records should be kept of interviews, along with the interviewers’ scoring/assessment of each applicant against the pre-determined criteria. Adjustments for candidates with disabilities Employers should be aware of the duty to make reasonable adjustments for any candidate with a disability, for example making adjustments to the physical environment or changes to the interview process itself, e.g. providing reading material in a large font to an applicant who has a visual impairment. Making an Offer Once the most suitable applicant has been identified, employers will need to make an offer. Consideration should be given to whether or not the offer is conditional upon receipt of satisfactory references, checking of qualifications or any other prerequisite checks such as DBS checks. All offers of employment should be conditional upon the applicant being able to provide documentation that they have the legal right to work in the UK and copies of such documentation should be obtained before they commence employment. Probationary periods Before sending out the offer letter and the contract of employment, the employer may want to consider a probationary period, to see how the relationship works in practice. Although probationary periods have been used for many years, they offer the employer little legal protection today due to the way in which employment law has developed. However, the probationary period will indicate to the employee that they are to be monitored and there may also be an expectation of extra training and supervision to learn the job. A probationary period can also be used to offer reduced terms and conditions, such as limited benefits and a shorter notice period during the trial. A probationary period may not however, enable an employer to dismiss more easily because the statutory protection such as discrimination and unfair dismissal applies during the probationary period. Of course, in many situations, unfair dismissal cannot be claimed by an employee unless they have the requisite service (two years’ service in England, Scotland and Wales or one years’ service in Northern Ireland), but there are still plenty of instances where unfair dismissal can be claimed without that length of service. Common claims are for asserting the employee’s statutory rights under the Employment Rights Act 1996 or under the Working Time Regulations. On the other hand, it may be slightly easier to face dealing with the dismissal of an employee either during or at the end of the probationary period than at other times because of the employee knows that they are ‘on trial’. It is important that review meetings are diarised before the probation period comes to an end and if employers have any concerns about terminating an individual’s employment, they should seek advice. This article first appeared on the Memberwise blog. Croner are a Memberwise Preferred Supplier of HR and Health & Safety Services for member-based organisations. For more information on shortlisting, interviewing and probationary periods, see our employment law services.
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