Recruitment and Selection

Understanding the law and recruitment

Employers are at liberty to select whoever they believe is the best person for the job. This will involve discriminating between candidates but the employer must not discriminate unlawfully on the grounds of race, religion or belief, sex (including pregnancy and maternity), marriage or civil partnership, sexual orientation, gender reassignment, disability or age. This is set out in the Equality Act 2010. Employers must also pay women the same as men for the same, similar or equivalent work. The Equality Act prohibits the inclusion of secrecy clauses on pay in employment contracts. Refusing employment on grounds of trade union membership or non-membership is also illegal.

Legal Obligations

Employers should make sure that:

• no applicant is treated less favourably on the grounds of age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage or civil partnership, pregnancy or maternity, or trade union membership or non-membership. Criterion for a minimum or maximum number of years of experience in a person specification will be indirectly discriminatory on the grounds of age against younger or older candidates respectively. Since the default retirement age has been abolished in most cases, employers should also be careful not to exclude older candidates from consideration.
• provisions on genuine occupational requirements are complied with where a person specification indicates that someone of a particular sex, race, religion or belief, sexual orientation or age group is required for a specific post
• consideration is given to any provision, criterion or practice (in the person specification) which, although apparently neutral in effect, might, under law, be indirectly discriminatory against particular groups of applicants
• reasonable adjustments are made for applicants who are disabled
• no pressure to discriminate is placed on any staff involved in recruitment and selection or any agency acting on behalf of the organisation
• they are aware of the liability of employers for acts of discrimination by employees acting in the course of employment, including where these are committed by managers and other members of staff
• they are aware that an employer’s defence to a claim of discrimination is to show that it took all reasonably practicable steps to prevent the act of discrimination
• the laws relating to children and young people are complied with
• checks on health, qualifications and/or criminal records, and requests for references are made appropriately
• check the employee has a right to work in the UK under the asylum and immigration legislation.
• data relating to recruitment and selection is processed in accordance with data protection legislation and guidance from the Information Commissioner. The Code can be downloaded from the Information Commissioner’s website.
• the terms and conditions of employment are consistent with statutory requirements and minimum standards
• the recruitment and selection process is monitored to ensure that there is no discriminatory treatment (this is a duty for public authorities under the Equality Act 2010).

For further advice visit recruitment & selection. The prudent employer will also check that:

• the terms of an offer of employment are carefully scrutinised to ensure that contractual obligations are fully understood by both parties
• all interviewers are appropriately trained in relation to current legislation and the organisation’s policies regarding diversity
• all selection methods are regularly reviewed to ensure effectiveness, reliability, and compliance with current legislation.

Local authority employers are required to follow specific legislation when recruiting and appointing a head of paid service (usually the chief executive) or chief officers, and general rules on appointing other staff.

Why is Selection Interviewing important?

Many managers are convinced they will know a good candidate when they see one. They may well, but if you don’t ask the right questions you may miss the best candidate. A well-conducted recruitment interview and selection process can be a very effective way of promoting your company; bad news travels and even in a recession good candidates can afford to be selective and good reputations are hard to cultivate and very easy to lose.

While there are many tools available for selecting staff, the interview remains the most popular and the most cost-effective even though it is the least predictive of future performance and in the hands of untrained interviewers, no better than chance. This is potentially a problem as most managers believe that they can interview, and well. An unstructured interview conducted by an untrained practitioner is often highly subjective and a poor indicator of workplace performance. A structured interview which refers to specific and well-researched job benchmarks and focuses on a candidate’s competencies will be a much more effective tool.

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