Hiring staff

Recruitment can seem like a minefield for an employer, although with careful planning and the right processes in place, it can mean the start of an exciting new chapter for an organisation.

Employers should take care to ensure that their recruitment practices are fair and do not discriminate against potential candidates. They should also ensure compliance with data protection legislation in relation to a candidate’s personal data.

Employers will also need to carry out right to work checks prior to employing anyone otherwise the organisation could risk prosecution and fines of up to £20,000 per illegal worker.

Local employment law solicitors

Holmes & Hills specialist employment solicitors regularly advise employers on all legal aspects with regard to the hiring of new staff, as well as all manner of HR related legal issues.

Our employment law solicitors can assist and advise your organisation on recruitment practice to ensure that your business is legally compliant. Our employment law team have experience in:

• Advising on and assisting with recruiting for a position
• Drafting job descriptions and job specifications – including advising on occupational requirements
• Advising on selection processes and conducting interviews with candidates
• Advising on giving feedback to unsuccessful applicants
• Assisting with issues such as withdrawing offers of employment
• Advising on data protection issues including drafting candidate privacy notices tailored to your organisation’s recruitment process
• Advising on right to work and pre-employment checks
• Training managers, senior management, HR and those personnel involved with recruitment on the recruitment and interviewing process
• Defending Employment Tribunal claims brought by job applicants regarding unfair and/or discriminatory recruitment practices

Discrimination issues in recruitment

Discrimination laws make it unlawful to discriminate, victimise or harass someone in relation to a ‘protected characteristic’. There are 9 protected characteristics which are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

The risk of discrimination can present itself at various stages of the recruitment process, including:

• The wording of the job advertisement
• The wording of the job description or specification
• At the shortlisting stage
• At interview

Employers who unlawfully discriminate against a candidate may find themselves defending an Employment Tribunal claim or subjected to an investigation by the Equality and Human Rights Commission (EHRC).

Artificial Intelligence in recruitment

Employers who use artificial intelligence (AI) to assist with recruitment processes need to be careful as AI algorithms may inadvertently discriminate against particular candidates.

AI involves a form of technology where a machine or software learns from the data it analyses or the tasks it performs. The AI can adapt its behaviour based on what it learns from the data it is given to improve its performance over time. In effect, AI can mimic human intelligence to perform tasks which may normally have been performed by humans e.g. sifting through applications or CVs.

Whilst it can be an incredibly effective and useful tool for recruitment purposes, it can inadvertently discriminate against candidates as the algorithm the AI uses may amount to a ‘provision, criterion or practice’ for the purposes of an indirect discrimination complaint.

For example, if AI is asked to sift applicants who are a good fit based on top performer profiles in the organisation but all of the top performers happen to be white, then the lack of diversity across the top performers will be reflected in the data and the results of the software may reproduce a similar outcome.

Data Protection issues in recruitment

Employers need to ensure that they comply with legislative data protection requirements in respect of personal data they process relating to candidates. Candidates will need to be made aware of how the employer will process the information they supply (normally electronically) and how long the data will be held for. It is usually fine for an employer to include this information in the job advertisement.