Avoiding the legal pitfalls of recruitment

Harrison Drury’s HR advisor Helen Darbyshire details how businesses can steer clear of discrimination claims during the recruitment and selection process.

With employment at record levels, competition for employees is fierce. It’s easy to see how in the rush to get people into post, it can be very tempting to take shortcuts in the recruitment and selection process. Employers need to be aware though that they do so at their peril.

The recruitment and selection phases of the employment relationship are key. They set the tone for those critical first months and are vital in making sure that the difficult early phase is positive.

In addition to making sure that employers communicate effectively, and engagingly, with employees they must ensure that they document their processes and make sure that decisions are based on legally compliant criteria.

What about employment rights?

As well as the relationship management aspect, it is also vital to consider the legal obligations. Many managers will of course be aware that after two years, employees accrue a number of significant employment rights.

What they may not be aware of is that, from the moment they apply, prospective employees have the right not to be discriminated against on the grounds of any protected characteristics. The protected characteristics are race, gender, marital status, religion or philosophical belief, age, disability, pregnancy / maternity, and sexual orientation.

This means that, if a prospective employee makes a claim that they have not been allocated a role on the grounds of one of these, the employer is bound to respond. With discrimination claims, employers face the added complication that the burden of proof sits with them. In other words, they need to prove discrimination did not occur.

So how can employers protect themselves from claims of discrimination?

Employers can protect their positions by having objectively justified criteria applied to all applicants and by taking the time to ensure that recruiting managers can demonstrate their rationale for progressing one individual over another.

They can further strengthen their position by making sure that, if asked for it, they have evidence which will help them to provide meaningful, considered feedback.

Helen Darbyshire is an experienced HR adviser, based at Harrison Drury Solicitors in Preston, who has been advising businesses on HR and employment issues for many years. If you have an HR issue you want to discuss, email Helen or call her on 01772 258321.

To find out more about how our specialist employment law team can help your business with recruitment and any other contractual matters, please visit our Employment page.