Recruitment tips for employers: five ways to avoid pitfalls when hiring new staff

Updated March 2019

Coodes Solicitors Employment Lawyer Philip Sayers shares his recruitment tips for employers and advises on some common pitfalls.

Research by the Recruitment and Employment Confederation (REC) suggests that businesses are feeling more confident about recruiting new staff. While employers may be feeling more optimistic about the future, it is important to understand the legal pitfalls around recruitment.

1. Check your job adverts are not discriminatory

It is important to ensure you are not discriminating against anyone through the wording or placement of your job adverts. This is not as easy as it sounds. Specifying that you are looking for a ‘recent graduate’ might sound reasonable enough but it is in fact discriminatory against older people. You should also carefully consider where you advertise. Only advertising in a men’s magazine, for example, could cause indirect discrimination against women

2. Avoid discriminatory questions during an interview

There are certain topics that employers must avoid during the interview. The key is not to ask any questions that relate what are known as ‘protected characteristics’ in the Equality Act 2010. This means you cannot discuss anything that relate to someone’s:

• Age
• Being or becoming a transsexual person
• Being married or in a civil partnership
• Being pregnant or on maternity leave
• Disability
• Race (including colour, nationality, ethnic or national origin)
• Religion
• Sex
• Sexual orientation.

3. Check before you ask about health or disability

On the whole, employers should avoid questioning candidates about their health or whether or not they have a disability. However, there are certain situations where this line of questioning is permitted. This includes when there are requirements of the job that cannot be met with reasonable adjustments or if you need to ascertain whether or not a candidate needs help to take part in the interview or selection process. This is a difficult area though, so if in doubt seek advice first.

4. Ensure you understand what is legal if you want to diversify your workforce

Recruiting new staff can be seen as an opportunity to make your workforce more diverse. But what is the legal position on positive action? The starting point is to understand that it is unlawful to discriminate against job applicants because of a protected characteristic. So, for example, choosing a female candidate to redress gender balance is generally a breach of the Equality Act. However, certain forms of positive action are permitted, such as selecting a disabled person over an equally qualified candidate. Because this is a complex issue, it is worth seeking advice to ensure your good intentions do not leave you falling foul of discrimination laws.

5. Make a conditional offer to avoid a breach of contract

You have carried out the interviews and you have your perfect candidate. Or at least you think so. Occasionally certain things come to light that make it apparent that the person is not perhaps as ideally suited to the job as you had initially thought. Withdrawing a job offer constitutes a breach of contract. To avoid this situation, I would recommend making a conditional job offer. That then gives you the opportunity to carry out checks, including obtaining references and criminal record checks before confirming the offer.

Recruiting new staff can be an exciting time for a business, but it is important to give some consideration to these recruitment tips. Be aware that job candidates can claim against organisations through an Employment Tribunal if they feel they have been unjustly treated.

For more information on this or any Employment enquiries contact Philip Sayers, Employment team, Coodes Solicitors on 01872 246200 or philip.sayers@coodes.co.uk