Guide to avoiding tribunal claims re recruitment

The recruitment process is demanding in terms of the time and costs involved. In addition, it represents legal risk if those engaged in the process are not suitably trained on diversity issues and your HR policies around recruitment.

The recruitment process includes advertising the role through to the terms of employment offered and everything in between. If conducted unfairly, and without following a robust process, you could expose the business to:

• employing the wrong candidate, which can be costly
• discrimination claims from disgruntled job applicants

The Equality Act makes it unlawful to discriminate against job applicants because of a “protected characteristic” (e.g. age, sex, race, nationality, gender reassignment, marriage & civil partnerships, pregnancy & maternity, religion & belief, sexual orientation and disability). In a competitive job market, more candidates are willing to dispute recruitment decisions on the grounds of discrimination to try and extracts settlement payments.

Discrimination claims by unsuccessful job applicants are surprisingly common. Indeed, there has been widespread news coverage of “serial litigants” extracting hundreds of thousands of pounds from different businesses by applying for jobs they have no interest in, only to threaten a discrimination claim when they do not get the job.

Here are our Hot Tips on how to avoid claims during the recruitment process:

Before advertising, identify the vacancy

Before advertising the vacancy, ensure that you have identified the key skills, attributes and requirements of the role. Taking this approach not only helps you attract the right calibre of candidate, but also demonstrates that you are objectively assessing the skills required to do the job, and that you are not influenced by other considerations, such as age, race or gender.

Get the advert right – no discriminatory requirements

When writing the vacancy advertisement, carefully consider each element of it to determine whether it could give rise to a claim for discrimination. Avoid common traps such as “young”, “mature”, “dynamic”, “able to work long hours”, “at least 5 years’ experience” or “this role is not suitable for wheelchair users because the office is on the first floor”, as these could exclude applicants who have a protected characteristic.

Use an application form and have a filtering process

At the point of application, the applicant should also be required to sign a candidate Privacy Notice relating to the processing of their data for GDPR purposes. This will explain that the employer will gather and process certain personal data for the purposes of recruitment, and outline that, where an applicant is unsuccessful, the data will not be retained for an unreasonable period of time.

Instead of relying on a CV alone, ask all applicants to complete an application form. This will make gaps in an applicant’s employment history more visible and enable you to make a fairer, more objective comparison of all the candidates more easily.

Interviewing

Where possible, ensure that at least two people are on the interview panel. This will help ensure a consistent and fair approach.

Where appropriate, ask candidates technical questions in order to determine whether or not they have the required experience. For example avoid the use of commonly-asked, general questions such as “give an example of a time when you worked in a team”, as many candidates will have well-rehearsed answers to these kinds of questions.

Don’t get too personal

Exercise caution when asking questions about a candidate’s personal life unless those questions are directly related to the requirements of the job.

Even in more informal job interviews, we recommend keeping the focus as professional as possible – moving onto topics such as nationality, family life, politics, health and sport can often backfire, either through:

“mirror recruitment” – inadvertently recruiting a less-qualified, unsuitable candidate who has similar interests or is of a similar background to the interviewers; or

a discrimination claim – an unsuccessful candidate may argue that they were unsuccessful because of their answers to questions asked about their personal lives.

Use interview forms

Ask all interviewers to use interview forms, so that each shortlisted candidate is asked the same questions and scored objectively. This will help ensure a fair, consistent approach, and assist you in justifying any recruitment decision if you are challenged on it in the future. In addition, ensure that thorough notes are taken by the interviewers.

Equality monitoring forms

If you are using equality monitoring forms, ensure that they are not disclosed to the interviewing panel or anyone dealing with the recruitment process. This will avoid any arguments of bias from unsuccessful applicants.

Train your staff

Provide training to those conducting recruitment processes and interviews. Effective interviewing is not a skill that everyone possesses.

In addition, staff should be trained on equal opportunities, diversity and your organisation’s duties under the Equality Act 2010.

Follow up with referees

In some cases, applicants will ask friends to write references for them or to produce pre-written references. If possible, call referees to confirm that references are accurate – many previous employers will be willing to speak with you

If you have any questions about how to conduct a legally robust recruitment exercise, do not hesitate to contact David Greenhalgh on 020 3603 2177.