HR and employment lawyer, Sarah Buxton, looks at some of the key things you need to avoid when going through an application process to recruit a new team member…
Protected characteristics
The process of recruiting a new member of staff can be stressful for a lot of employers – as they look to attract the ideal candidate for the job. Throughout this process there are a number of things that you will need to consider, but probably the main and most important one is protected characteristics.
These characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation – it’s crucial you keep all of these in mind right from the very start of the application process or you could leave yourself open to a discrimination claim.
The first time you need to consider these groups is when you are putting a job specification together. It’s important that you do not pre-judge or use terms which infer you would prefer to employ/engage an individual who has a protected characteristic. For example, in its simplest form, if you said you would like a “female receptionist” to join your team, this would be placing men at a disadvantage and therefore any men who wanted the receptionist role could make a claim for sex discrimination.
You also need to be careful when using an application form during the recruitment process. For example, if one of the questions on the job application asked about the applicants age or date of birth and you employ/engage someone outside of that age range, it could be inferred that you were specifically recruiting for someone of a certain age and therefore is age discrimination. . This has happened in the past, so the best thing you can do to avoid a situation like this is to not ask someone for their age.
There can also potentially be risks with job titles, so, for example, someone might be advertising for a nurse and may put the advert out with the words ‘senior nurse’. However, because people associate a senior nurse position with someone who is a lot older, it may put off younger people even though they are qualified for the position – and again, this could potentially leave you open to an age discrimination claim.
Some of the protected characteristics can lead to some very wide-ranging claims and an example of that involves a business that published a job advert stating they were looking for a ‘bubbly candidate’. You might not think there would be an issue at all with that, however, an individual made a sex discrimination claim stating the advert was only aimed at females, because the word ‘bubbly’ was only ever used to describe females and won!
Religion and belief are also wide-ranging characteristics that you need to carefully consider. An example of a religious discrimination claim came from an advert that was only placed in a Jewish magazine. Because it was only put in a magazine aimed at one religion, a discrimination claim was brought forward under religion, with an individual stating that he had been discriminated against. He claimed he didn’t stand a chance of getting the job because the business had only been looking for candidates from a certain religion and in this case, he won.
So, the important message on this topic is to really consider every single detail in your job specification that falls into one of the protected characteristic categories.
Avoid asking health questions
In job interviews and on application forms, employers do tend to ask questions relating to the health of a candidate – however, like some of the above points, this is an area that you need to avoid asking about directly.
This is because, again, it could leave you open to a discrimination claim. For example, say you asked a candidate if they had any health conditions on their application or in their interview and then someone else, who didn’t have a health problem, was handed the job, then that person could potentially bring a discrimination claim forward.
This doesn’t mean you can’t talk about a candidate’s health at all. What I would advise you do on both the application and in interview, is ask whether the candidate will require any reasonable adjustments to attend the interview, or in their role. Further, once the role has been offered you can ask health questions that are intrinsic to the role, for example if the individual has a latex allergy as you would need to ensure this is cater for.
Following the correct process
Other useful points to remember when recruiting a new member of staff relate to the point where you offer someone a job. When you are in a position to offer a candidate the vacant role, you will inform them over the phone and then in writing, either via post or email.
When you do this, it is really important to state clearly whether the job offer is subject to any conditions. So, in some roles, the offer may be subject to a DBS check, or references. In the case of the CQC, they like employees to have two references in place – or it may be that you want to see a proof of the candidate’s qualifications.
This is something that in the past some employers haven’t done – and when they’ve discovered a candidate hasn’t got a certain qualification or a DBS check, they have been in a difficult situation when it comes to retracting the offer.
By stating in the offer letter that the job is subject to conditions, you are covering yourself if a condition isn’t met and you have to retract the offer and it means the candidate wouldn’t have any grounds to sue.
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About Sarah
Sarah is a HR and employment lawyer at FTA Law. If you have any other queries regarding recruitment, then you can get in touch with Sarah by emailing sarah.buxton@fta-law.com
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