Recruitment and selection Q&As

Under the Equality Act, no employer can discriminate in any arrangements for advertising jobs or in the actual content of the job advertisement, job description or person specification. Poor wording in advertisements can be used as evidence of an intention to discriminate and a job applicant who is rejected or who doesn’t apply because they don’t meet the criteria may bring a claim of age or sex discrimination (for example).

It is acceptable to stipulate the essential criteria without which the applicant would be unable to adequately perform the job. Provided it is not discriminatory, desirable criteria may also be specified (for example, ‘A background in legal or financial services will be beneficial’).

Keep job titles gender neutral (‘bartender’ instead of ‘barman’, for example).

Avoid naming qualifications unless you can objectively justify why applicants would need them. For example, requiring ‘5 GCSEs’ of your candidates discriminates against both older candidates and those educated outside of the UK. It is safer to be specific about what skills you’re looking for.

‘Recent graduate,’ ‘at least three years’ experience in a similar role’ and the like also need to be objectively justified to avoid age discrimination – but the language doesn’t have to be explicit to fall foul of the law (see McCoy v McGregor & Sons Ltd (2007), where the offending phrase was ‘youthful enthusiasm’).

Stating that applicants must be ‘flexible’ or prepared to work late or long hours may discriminate against people caring for children or elderly relatives. Flexibility and the ability to work late should only be included if they are genuine requirements of the role.

If a job does have a physical component (driving, heavy lifting, ability to work at heights and so on), describe it clearly so that disabled candidates can assess whether reasonable adjustments to the role might be possible.

Ideally the job advertisement should include a statement that the employer is an equal opportunities employer, and invite disabled applicants to contact the employer to identify any additional support they may need during the recruitment process.

Justifying discrimination in advertisements

In very limited circumstances it may be justifiable to use discriminatory criteria:

• Health and safety (for example, to protect young workers as required by the Young Workers ' Directive 1999).
• There is a genuine occupational requirement for a person of a certain characteristic to carry out particular duties (see How can employers demonstrate that there is a genuine occupational requirement in certain job advertisements?).
• There is objective justification (see How can an employer justify or defend a discrimination claim? in the Sex discrimination Q&As).

Under the Equality Act 2010, there is a very limited defence available to a discrimination claim if the employer can show an occupational requirement that justifies the discrimination. This will not happen often. This single occupational requirement applies to all of the protected characteristics.

An occupational requirement can arise only for a few specific jobs which are reserved for people with a protected characteristic. It is important to understand that this exception is very limited indeed. In these rare cases, discrimination by the employer in favour of the particular protected characteristic will be allowed. The occupational requirement may be specified during recruitment, training and so on for the role. The employer must be able to show that the requirement to discriminate is a ‘proportionate means of achieving a legitimate aim’.

If it is an occupational requirement for an applicant to have a protected characteristic then it is lawful to advertise the position as such (for example, ‘Personal care worker for elderly women required. This post is only available to female applicants as permitted under the Equality Act 2010’).

Cases concerning genuine occupational requirements have arisen where employers wish to ban the wearing of headscarves for religious reasons; it has been held that there can be no genuine occupational requirement that would justify such a ban (see Is it religious discrimination for an employer to have a dress code which prohibits clothing often worn by employees of a certain religion? in the Religion and belief discrimination Q&As).

There are no specific rules governing whether employers must advertise internally and externally. However, there is legislation concerning temporary, part-time and fixed-term employees and discrimination.

An employer who advertises a vacancy internally should consider the reasons for doing so. If the workforce is not diverse already and has a predominance of one particular protected characteristic, advertising internally may be discriminatory.

Employers must ensure that temporary staff (including part-time workers, fixed-term workers and agency staff) and those absent from work (including those on maternity leave or long-term sick leave) are informed of available vacancies.

If an employer doesn’t advertise at all, or advertises in a limited way, this might lead to claims of indirect discrimination. This is because limited advertising may prevent people with a particular protected characteristic from applying for a job.

For example, several women tell their employer they’d be interested in being promoted to assistant manager when the role next becomes available. When the incumbent assistant manager leaves, the employer only advertises externally and appoints a male candidate. This refusal to consider the existing female staff members could expose the employer to a claim of sex discrimination.

While advertising internally is a fair approach for an employer to take, limiting applications to only permanent employees may fall foul of other legislation including:

• The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) (Fixed-term workers Q&As).
• The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Part time workers Q&As).
• The Agency Workers Regulations 2010 (Temporary workers Q&As).

It is therefore advisable for employers to inform all employees, regardless of status, of vacancies at the same time.

However the decision whether to advertise a vacancy at all is an employer’s decision alone and there is nothing to stop an employer deciding that there is one particular individual they would like in a role and approaching them directly.

There is no general duty for an employer to advertise job vacancies, but the narrower the advertising, the higher the risk of a discrimination claim. The safest approach for employers is to widely advertise vacancies and avoid focusing recruitment exclusively in one place.

Limited advertising must not discriminate against anyone on the basis of any of the protected grounds, unless there is objective evidence to justify the discrimination. Even advertising only via the internet is likely to discriminate against older candidates who are statistically less likely than younger people to use it.

For example, a small shop recruits by advertising vacancies in its Facebook group, which is closed to non-members. All the group members happen to be white British, despite the shop being in an area of high racial and ethnic diversity. Unless the shop owner can objectively justify this form of advertising, this is likely to be indirect race discrimination.

An employer that targets only university recruitment fairs could face claims of age discrimination, because it is largely excluding those over 25 years of age from its pool of potential candidates.

An employer that deliberately limits its recruitment advertising should keep detailed records of its reasons for doing so, especially as it is easy to argue that it makes sounder business sense to attract a wide field of applicants.

Some employers operate an employee referral scheme where existing employees are invited to introduce a suitable candidate from their friendship or family group. As a reward, the employer may pay the referring employee a referral bonus.

The practice of recruitment on the basis of recommendations made by existing staff, rather than through advertising, can lead to discrimination. For example, where the workforce is drawn largely from one racial group, this practice can lead to continued exclusion of other racial groups. Therefore it can be safer to advertise the role widely so that the employer can select staff from a wider and more diverse pool.

Answer:

Many employers use online or paper application forms as well as, or instead of, CVs and covering letters.

If applications forms are used they should focus on name, contact details, skills, qualities and experience relating to the job. If the employer plans on taking up references before interviews take place, details how to contact referees can be sought on the application form with candidates' consent.

Things to avoid asking on the application form include the following:

• Age, race, gender, religion or belief, sexual orientation, disability
• Marital status
• Children and childcare arrangements
• Health record

Any personal details like the above may be used to discriminate unlawfully because of the information given.

Monitoring

Monitoring involves gathering information on the diversity of potential recruits and existing employees. This data can then be compared with data about other employees and jobseekers, identifying trends over periods of time and comparing differences between groups both with the local community and the national labour market.

Employers should monitor equality and diversity to check that their equality policy is working effectively.

However asking individual applicants questions about the potentially discriminatory matters referred to above, is different to monitoring equality and diversity which can be done at a variety of different points in the employment cycle including recruitment.

Some personal information, such as date of birth for a pension scheme, or religion for equality monitoring can be asked in confidence once a job has been offered. Alternatively, job applicants can be asked for monitoring data on a sheet that is detached from the application form so the information is kept separate from the selection process.

The information must be treated confidentially and only be used for equality monitoring and not for selection.

Monitoring at the recruitment stage will include who applies for the job, who is interviewed and who is recruited. Subsequent monitoring may address which employees are promoted, who is subject to disciplinary or grievance procedures, who is sick, leaves and is dismissed.

If such monitoring information is gathered it constitutes sensitive data under the Data Protection Act 1998. For more information on handling sensitive data see our Data protection, surveillance and privacy at work Q&As.

Disability

Employers may need to offer application forms in an alternative format and to allow the candidate to present their answers using the best method for them. Methods to consider may include larger font, braille or recording verbal information.

Criminal records

Some employers ask applicants to provide details about previous convictions for criminal offences on the application form. Under the Rehabilitation of Offenders Act 1974 (Act) certain convictions become spent. Great care must be taken by employers as it is against the law to refuse to employ someone based on a spent conviction.

Larger employers sometimes produce guidance notes for applicants which accompany the application form and confirm whether the post for is exempt from the Act. The position is then either:

• the post is exempt and all convictions spent or unspent must be disclosed, or
• if the post is not exempt, then the applicant does not need to provide details about previous convictions, which are ‘spent’.

If jobs are exempt, then the job application form should clearly state the job is 'exempt from the Rehabilitation of Offenders Act 1974'.

The National Association for the Care and Resettlement of Offenders (Nacro) has a number of recommendations for employers dealing with criminal record disclosure on application form. For example they suggest that:

• Employers should remove criminal record disclosure questions from the very first application stage of the recruitment process. This ensures that all applicants are assessed on their skills, qualifications and ability to do the job.
• Asking questions in relation to criminal records at a later stage in the recruitment process may be more appropriate.
• Avoiding a Yes/No tick box or a couple of lines approach to criminal record declarations is helpful as the employer needs detail and a context surrounding the criminal record to enable the employer to make a better risk assessment.

Nacro advises employers to adapt their application forms, online portals and recruitment policies and procedures to ensure they do not inadvertently discriminate against people with criminal records.

For more information on employing ex-offenders and the Rehabilitation of Offenders Act 1974 go to the related Q&A How should employers deal with job applicants who have criminal convictions or spent convictions?.

Answer:

Shortlisting is a very important part of the recruitment process and should be undertaken with careful consideration.

Employers must short list in a fair and objective way, using the same set of selection criteria for each candidate. This criteria must relate to the requirements of the job and should be free from bias and any form of discrimination.

Ideally more than one manager should undertake the short listing exercise, basing their decisions on skills and ability alone. They should be trained in diversity and avoiding discrimination on age or other grounds.

The following stages may form part of the short listing process:

• The two or more recruiting managers produce short listing criteria by referring to the job description and person specification. There may also be a competency profile.
• The managers should list all the requirements of the job perhaps using a chart or grid. There may be different columns for ‘essential’ criteria and ‘desirable’ criteria.
• Some employers may use a points or rating system to score potential candidates against the criteria by considering their application forms and scoring them against the requirements.
• Each manager assesses applications individually to help prevent bias - after the initial sift they may meet to agree the final shortlist.
• Applications are reviewed against the criteria using the requirements of the person specification to judge applicants and identifying a suitable pool of candidates for interview, testing or further assessment.
• Ideally a third person should check that no bias has influenced the short listing.
• The list of candidates to invite for interview may be limited, even interviewing six people for any one job can be very time consuming.
• Inform those applicants who were not shortlisted for interview that they were unsuccessful in a neutral non-discriminatory way.
• Employers should record decisions and retain records for at least six months.

All managers involved in short listing must avoid making assumptions about a candidate's abilities and base their decisions on wholly relevant information.

Disabled applicants

It may not be clear from a disabled person’s application whether reasonable adjustments would enable them to perform the role effectively. If a disabled applicant appears suitably qualified, the employer should offer them an interview and expressly clarify the question of reasonable adjustments.

Employers should consider potential disability and health and safety issues, and should have their shortlist of candidates prepared (see What should employers take into consideration when short listing job applicants?).

After preparing the shortlist and inviting the candidates to interview, consider whether special arrangements will be necessary (for example, it may be appropriate to offer to pay travel expenses).

Notify candidates in advance if you’ll require them to undergo psychometric or written tests, as some may need reasonable adjustments to be made.

If you are checking references in advance of the interview, you’ll need the candidates’ permission (References Q&As).

It is not necessary to request proof of the right to work in the UK, identity or qualifications at this stage.

The interviews for each candidate must be consistent and the questions carefully structured to avoid accusations of discrimination or bias (see What questions should employers avoid asking during a job interview?).

Disability

It is generally unlawful to ask about a candidate’s health before the interview, but there may be exceptions if the employer needs to:

• decide if reasonable adjustments are needed in the selection process (bear in mind that the duty to make reasonable adjustments applies to the interview as well as to the job itself)
• determine if an applicant can carry out a function that is essential to the job such as heavy lifting, or
• monitor or improve its workplace diversity.

See also Can an employer require all job applicants to complete a pre-employment medical questionnaire and insist they have medical checks?

Answer:

Employers should have prepared consistent questions before the interview which will be put to each candidate. For further information on how employers should prepare for an interview see our related Q&A How should employers prepare for conducting a job interview?.

Interview questions should focus on the candidate's competence and interviewers should have received training in equal opportunities and diversity.

Except where there is genuine occupational requirement, it is discriminatory and contrary to the Equality Act 2010 for an employer to discriminate against a job applicant because of their protected characteristic, such as race, sex, or age. Therefore questioning should not be directed at any of the characteristics.

The following questions are examples of those which should be avoided as such lines of questioning will provide candidates with evidence to support a discrimination claim:

• Are you married?
• How old are you?
• What is your date of birth?
• How many children do you have?
• What does your husband do?
• What does your husband think of you applying for this role?
• What church do you go to?
• How would you feel about managing younger people?
• And how many more years do you see yourself working?
• When are you planning to retire?
• Where do you come from?
• Which political party do you belong to?

The following are examples of comments which should also be avoided during the interview:

• We were looking for someone more mature.
• We need someone who could travel so we are worried about your childcare responsibilities.

Disabled candidates

When interviewing disabled candidates the employer has a difficult balance to strike. On the one hand the employer must not make assumptions about a disabled candidate’s abilities or the level and nature of support that they might require. However the employer should make reasonable adjustments in preparation for the interview and the employer can raise during the interview what adjustments may be required should a disabled applicant be successful.

The focus of questions for a disabled candidate should like the other candidates be standard questions based on the person’s ability to do the job. Specific questions related to the disability should be restricted to those that have a potential impact on the ability to do the job. The purpose of questions relating to the applicant’s disability is to reveal what may be needed by way of adjustments.

The Equality Act 2010 provides explicit protection against pregnancy and maternity discrimination, and a job applicant has no obligation to disclose her pregnancy to a potential employer.

If an employer notices that an applicant is pregnant and decides not to offer the job because of the pregnancy, this would be pregnancy and maternity discrimination under the Equality Act 2010 (though it may be difficult for the candidate to prove this was why they did not get the job).

Maternity, paternity and adoption leave and pay Q&As

Under the Equality Act 2010 it is unlawful, except in certain circumstances, for employers to ask about a candidate’s health.

In the recruitment process, it is unlawful for an employer to discriminate against a disabled person:

• in the arrangements made for determining who should be offered employment
• by asking unnecessary health-related questions
• in the terms on which the disabled person is offered employment
• by refusing to offer, or deliberately not offering, the disabled person employment.

Therefore employers shouldn’t usually ask health questions at all until a job offer has been made.

Pre-employment health-related questions

The Act limits the circumstances when employers can ask pre-employment health-related questions. Some questions are allowed for certain specified purposes (set out below). If necessary, an employer may establish whether an applicant can carry out a core function of the role.

Employers can ask health-related questions to determine if:

• reasonable adjustments are needed in the selection process
• an applicant can carry out essential elements of the job (e.g. heavy lifting).

Diversity monitoring may also be a valid reason for asking health-related questions.

Prohibited questions

An unsuccessful job applicant cannot take an employer to an employment tribunal because they think they have been asked questions prohibited under the health check provisions. However, they may have a claim under other parts of the Act and can also complain to the Equality and Human Rights Commission.

If an employer (or a recruitment agency on its behalf) asks an unlawful question about the health of a disabled applicant during the recruitment process there may be a claim. The effect of the employer asking a prohibited question is that the burden of proof shifts to the employer. This means that if the employee subsequently brings a direct disability discrimination claim the employer will have to prove that no discrimination took place. The employer will have to establish what the reason for the non-selection was.

Voluntarily offered information

Even if an applicant voluntarily discloses information about their health or disability during an interview, employers should avoid asking any questions in response, unless they fall within the permitted exceptions. If the candidate attempts to discuss reasonable adjustments to do the job, employers should defer this discussion until a job offer has been made. Once a candidate has been offered a job, the employer can then ask appropriate health-related questions. Some selection tests or assessments will be permitted, such as necessary medical checks.

It is not usually discriminatory to ask if an applicant is disabled on the application form as long as the question is asked to enable the employer to make reasonable adjustments which make the interview process more accessible.

In the case of job applications, the duty to make reasonable adjustments may not apply if the employer does not know (and could not be reasonably expected to know) that the applicant has a disability.

Key points for employers

• Assessing a person’s ability to perform a job is an important selection tool. Any pre-employment medical checks should be to identify disability issues only to help the applicant.
• If a health check reveals a disability, the employer should consider whether a reasonable adjustment could be made.
• If the fear of significant absences is used as a reason for withdrawing a job offer, a discrimination claim may arise.
• Application forms should be audited to ensure questions serve a business-related purpose.
• Some questions about an applicant’s ability to perform the role may be more appropriate in an interview setting, where the applicant can explain fully and discuss any reasonable adjustments they may need.
• People must not singled out for a medical check simply because they have a disability. If a medical check is required, it must be required of all applicants. Employers still can make job offers conditional on the results of medical checks, but it would be risky to withdraw an offer to a disabled person unless it is beyond doubt that the health issues revealed meant that the role was impossible for them to do even after reasonable adjustments were made.
• Data Protection Act 1998 issues may also arise as information about a person’s health condition is sensitive personal data.

Answer:

Employers should assume that job applicants have the right to see interview notes and other documents obtained during the recruitment process. So employers should handle CVs, forms, notes and other information obtained during the recruitment process in accordance with the Data Protection Act 1998 (DPA) which requires all types of personal data to be processed fairly and lawfully.

Interviewers should make notes in the knowledge that interviewees will probably have a right to request access to their interview notes as these may constitute personal data and could be disclosed to an applicant as part of a subject access request. Basically if the notes form part of a 'relevant filing system' either in an electronic or paper file then this means that the personal information about job applicants may be revealed to them.

Both existing employees and job applicants can make a subject access request to obtain a copy of the personal data the prospective employer holds about them. There are two main types of data which must be handled with care:

• Personal data includes information which relates to a living person where that person can be identified from the data either alone or in conjunction with other data held by the employer. This will include completed application forms, CVs, any short listing notes relating to that candidate, interview notes etc.
• Sensitive personal data is information which relates, for example, to the person's disability, health, race, religion, political views etc and attracts a higher level of protection. This information may include health or medical questionnaires and interview notes.

Points for employers

To ensure that they are complying with the DPA during the recruitment process employers should consider most of the following points:

• Explain in the job advertisement, application form or application pack how personal data will be processed.
• Ensure that online application forms and other documents submitted electronically are secure so that only the recruitment managers can access them.
• Employers should avoid seeking sensitive personal data about health details etc at the outset of the application process unless this is used for the purpose of equal opportunities monitoring or for making reasonable adjustments in the recruitment process.
• Keep any sensitive personal data separate to the application forms so that the interviewing manager is not influenced by it.
• Where possible, anonymise any sensitive personal data gathered during the recruitment process, so that it may then not constitute 'personal data' at all.
• Ensure any questions in application forms are relevant and non-discriminatory and tailored to the specific job.
• Only request information on criminal convictions where this is relevant and necessary for the role and consider only asking about this at a later stage in the recruitment process. Employers should delete any information about successful applicants' criminal convictions once this has been verified by a DBS check if appropriate.
• Inform unsuccessful applicants of the policy for retaining or disposing of their application form, CV or other documents.
• Confirm to the unsuccessful applicants that recruitment records will be retained for no longer than six months and will not be disclosed to any third parties without their consent. (The limitation period for bringing a discrimination claim arising from the recruitment process is three months, but it is possible for this period to be extended by a tribunal to facilitate Acas conciliation and for other reasons too. Hence the recommended retention period).
• Provide some unsuccessful applicants with the opportunity to request that their details are removed altogether.
• Employers may also wish to consider equal opportunities monitoring for applicants. Larger employers and public authorities already do this, but other employers may wish to show they are an Equal Opportunities employer.

Retaining careful notes and a full paper trail is best practice as it can help employers defend discrimination claims under the Equality Act 2010 from disappointed candidates.

For further information on who the Data Protection Act applies to and which manual filing systems see the Q&As Does the Data Protection Act only apply to data processed in relation to employees? and After the Durant case are manual personnel and other manual files likely to be covered by the Data Protection Act? in our Data protection, surveillance and privacy at work Q&As.

Right to see information on other job applicants

Employers should assume that job applicants have the right to see interview notes and other documents about themselves obtained during the recruitment process. However are they entitled to information about other applicants?

Whether job applicants are entitled to information about other applicants is governed in part by EU law. It appears that disclosure of the successful applicant’s details does not have to be provided as of right.

In the leading case of Meister v Speech Design Carrier Systems GmbH (unreported, C-415/10 19 April 2012, ECJ) a German employer advertised for a software developer, but rejected the Russian applicant without interview. There was nothing to suggest that her qualifications in systems engineering were unsatisfactory and she was not told why her two applications had been unsuccessful. She believed that her rejection was on the grounds of her sex, age and ethnic origin. She claimed discrimination in the German courts and then sought a copy of the successful candidate’s file in support of her claim. The ECJ held that an employer is not obliged to provide an unsuccessful job applicant with information on a successful candidate, but a failure to do so could lead to an inference of discrimination.

So employers are not under an obligation to provide unsuccessful applicants with information on other candidates, but a refusal to provide such information may be taken into account when deciding if an unsuccessful job applicant has been discriminated against. Employers should keep exemplary recruitment records and consider carefully any request made by an unsuccessful candidate for information on the recruitment process. It is good practice to provide helpful, tactful feedback to an unsuccessful applicant as this may nip a potential claim in the bud.

For more information on providing feedback to unsuccessful job applicants see the related Q&A What are the legal implications of providing feedback to unsuccessful job applicants?.

Not necessarily.

Employers should compare the applicant’s skills and experience to the criteria in the person specification and job description. A well-written person specification will not overstate the level of qualifications necessary for the job.

The best-qualified applicant is not necessarily the most suitable when compared to the criteria or when the existing team is taken into account.

Always be aware of the risk of indirect age discrimination, as older applicants tend to have more qualifications.

All employers must check under the Immigration, Asylum and Nationality Act 2006 that anyone to whom they offer employment has the right to work in the UK. It is illegal for an employer to employ someone without having checked their right to work status.

All job applicants, regardless of colour, race, nationality, ethnic or national origins, or primary language must be asked the same question otherwise this could amount to unlawful discrimination (see What documentation can employers ask for relating to a job applicant’s immigration status?).

Employers can make a conditional offer of employment while the potential employee gathers evidence that they have the right to work in the UK or waits for their permission to come through. However, there is no obligation to wait indefinitely for proof to be provided.

There are two main options for employers dealing with this issue:

• Tell all applicants that they must bring documentary evidence of their right to work in the UK to the interview, when the employer can copy them.
• Make all offers of employment conditional upon applicants gaining permission to work in the UK and then obtain the documentary evidence of the applicant's right to work before employment starts.

It is prudent in some cases to interview candidates with no right to work as yet, using the standard criteria based on the knowledge, skills and experience required for the relevant post. In this way they will be treated no less favourably than another applicant on the grounds of national origin.

Immigration Act 2016

The Immigration Act 2016 became law on 12 May 2016. It introduced measures related to illegal migration and changed some aspects of legal migration (see What are the penalties if an employer recruits illegal workers?).

An employer’s obligation to check documents relating to employment status is complicated. All employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks on all prospective employees. These checks are not just one offs, but have be repeated for those who have time-limited permission to work in the UK.

There are three basic steps for employers to follow:

• Obtain the person’s original documents
• Check the documents in the presence of the document owner
• Copy all documents, make a record of the date of the check, and retain the copies.

Employers must check the validity of the original documents in the (actual or virtual) presence of the prospective employee.

Detailed information on how to carry out a right to work check and the documents acceptable for demonstrating right to work in the UK is available from GOV.UK

The government has recently strengthened the law relating to recruitment of illegal workers (see What are the penalties if an employer recruits illegal workers?).

European Economic Area and other countries

The documentary requirements, exemptions, and rules for non-EU workers are too complex to be adequately summarised here.

The government guidance and codes of practice contain the full list of relevant documents, examples and images of right to work documents which can be provided by a prospective or current employee as evidence their right to work in the UK.

There are both civil and criminal sanctions for employing illegal workers. Although there have been attempts to simplify the whole process of checking a worker’s right to work in the UK, it is still fairly complex and as a result employers can hire illegal workers without realising it.

Criminal penalties

From 12 July 2016, the law was changed so that recruiting illegal workers is now a criminal offence (rather than a civil one), and is committed by an employer that hires someone despite:

• knowing that they are an illegal worker, or
• having reasonable cause to believe that the person has no right to work in the UK.

This places more employers at risk of prosecution.

Depending on the seriousness of the offence, prosecutions may be brought in England and Wales in either the Crown Courts (indictment) or Magistrates’ Courts (summary conviction), or in the equivalent courts in Scotland and Northern Ireland.

On summary conviction employers may face a jail sentence of up to six months and/or a fine (unlimited in England and Wales). Following conviction on indictment, they may also face a jail sentence of up to five years.

Civil penalties

A civil penalty applies for each illegal worker unless a statutory excuse is established (section 15 of the Immigration, Asylum and Nationality Act 2006):

Level 1

Maximum penalty: £15,000

Criteria: Where an employer has not employed illegal workers in the last 3 years.

Level 2

Maximum penalty: £20,000

Criteria: Where an employer has not employed illegal workers in the last 3 years.

Statutory excuse

A statutory excuse defence may succeed if certain documents were checked before employment started and appropriate copies of these documents have been retained on file.

The Home Office has published a list of acceptable documents in its employer’s guide to right to work checks, and a statutory excuse checklist.

Immigration Act 2016

Business shutdown

An immigration officer will be able to close business premises for up to 48 hours where illegal working is suspected and an employer cannot provide evidence that right to work checks have been conducted, and:

• the employer has received one or more civil penalties for employing illegal workers in the last three years,
• the employer has failed to pay a previous civil penalty, the period of 28 days to appeal has expired and there is no live appeal pending determination, or
• the employer has an unspent conviction for employing illegal workers.

During this period it is up the employer to produce evidence of compliance that they were unable to provide during the visit. If the employer can do this earlier, the closure notice may be cancelled. If not, an application is then made to the courts to place the business under special compliance measures.

International students

International students (those from outside the European Economic Area) are allowed to work in the UK during term times (up to a maximum of 20 hours) and full time during holidays if their permission allows them to work in the UK. Students must not work in permanent roles. Employers must now obtain evidence of academic term and holiday dates to ensure they are not employing a student on a full time basis during term time.

Transfer of Undertakings

Employers who acquire staff as a result of the Transfer of Undertakings (Protection of Employment) Regulations have 60 days from the date of the transfer of the business to carry out their first statutory document checks of the new workers. For further information see the Q&A What are the obligations that arise under the Immigration Asylum and Nationality Act 2006 following a TUPE transfer? in our Transfer of undertakings (TUPE) Q&As.

All the documents mentioned form part of a collection on illegal working penalties which are available on the GOV.UK website.

Employers should initially consider with these applicants in the same way as they would deal with any other applicant: based on their skills, qualifications and ability to do the job. There may be some complexities for employers to deal with subsequently, however, depending on whether the convictions are spent or unspent and the nature of the role on offer.

While there is a clear general rule about allowing certain convictions to become spent, there are many exceptions depending on the type of vacancy. It is also important to note that not all convictions can become spent.

As a general rule, job applicants do not have to disclose spent convictions to prospective employers. Exceptions to this rule may include:

• Medical and social services roles
• Lawyers
• Accountants
• Police officers
• Positions which involve working with (or in near proximity to) minors.

Seek legal advice if you are in any doubt as to whether your organisation can require applicants to disclose their spent convictions.

Criminal record checks are expressly required for certain posts, particularly for those working in regulated activities with various vulnerable groups, but it is a common misconception that anyone who’ll have contact with children in the course of their employment (for example, a bus driver) must have a criminal background check.

There is, however, a vetting and barring scheme that applies to those who work with children and vulnerable adults (Safeguarding Vulnerable Groups Act 2006) and a ‘blacklist’ of offenders who will be either monitored or barred from working with these groups. Only employers recruiting for roles covered by the legislation may request that applicants be checked against this list, which is maintained by the Disclosure and Barring Service.

This is a complex area in which employers need to be very careful. It is a criminal offence to ask that an applicant for a role that is not covered be checked against the list.

See also our factsheet on the Disclosure and Barring Service (last updated September 2015), and the 2015 guide to recruiting fairly and safely that we published jointly with Nacro.

Answer:

Many employers seek references after the job offer has been made;other employers take up references before conducting interviews with all their shortlisted candidates. The purpose of referencing is to obtain objective information on the candidate’s suitability for the role.

For more information on taking up references and other legal issues relating to this area of employment law see our References Q&As.

See also the related Q&A Is an employer bound by job offers which are conditional on satisfactory references or other conditions?

There is no requirement to give feedback to an unsuccessful job applicant, though they may be entitled to certain information under the Data Protection Act 1998 (see What should an employer do with CVs, interview notes and other documents obtained during the recruitment process and do job applicants have the right to see these documents?).

Depending on what was said in the interview, a rejected applicant may be given grounds for bringing a discrimination claim based on the feedback they receive. For example, telling a candidate with young children that they were unsuccessful because you were concerned they’d be unable to work late nights and weekends could give rise to a sex discrimination claim.

Yes. The normal rules of contract apply to employment contracts (although there are some statutory rules which are imposed on whatever the employer and employee agree). Verbal agreements can be binding.

This means that an employment contract can be formed at the interview stage if an employer makes an unconditional offer of employment, which is clearly accepted by the employee.

Many employment (and other) contracts are a mixture of written and oral terms. The problem with verbal agreements as to terms and conditions is that they are hard to prove if there is a dispute about what was said. This can be particularly difficult if a long time has passed since the interview, or if the interviewer who made the verbal agreement leaves the employer.

Even if a verbal agreement is made at the interview, the employee is entitled to a written statement of particulars within two months of starting work. Although it is not compulsory for employees to have the entire contract in written form, it is advisable to have a written agreement that is as comprehensive as possible.

Yes, although the employer’s and the applicant's positions depend on what precisely was said and agreed.

Future offers

Some employers send out what is really a future offer (or an executory contract), which specifically states that an offer will be made only when all pre-employment checks are satisfactorily completed. There is no offer for the applicant to accept.

Conditional offers

A binding job offer may be made and accepted on a conditional basis (a conditional contract). Examples of common contract conditions include:

• provision of satisfactory references
• criminal record checks for appropriate jobs
• proving certain qualifications
• medical or health examination (although this is very rare)
• proof of eligibility of right to work in the UK.

If the applicant accepts the contract, the employer’s is bound to honour it provided that the conditions are satisfied.

If the employer feels the conditions have not been met, for example if it feels the references are unsatisfactory, the employer will state that the contract is no longer legally binding and the applicant cannot rely on its terms. The applicant may try to argue that the references were satisfactory and the contract is binding. Although this would be unusual, if the applicant successfully sued for breach of contract the damages would be limited to the notice period.

Unconditional offers

If an unconditional offer is accepted a binding contract is then formed. If the employer attempts to withdraw the offer, it will be in breach of contract and the applicant will be entitled to compensation for the period of notice at least.

The basic position is that an employer may withdraw a job offer at any time before it is accepted by the employee. However, if the reason for withdrawal of an offer is discriminatory, the employer may be exposed to a discrimination claim.

Once a contract is made it can only be terminated by giving contractual notice. If the contract does not specify a notice period, the tribunal will choose a reasonable notice period.

Verbal job offer

A contract may be formed at the interview stage if an employer makes a binding, unconditional offer of employment which is clearly accepted by the employee. If the employer subsequently attempts to withdraw the offer, the employee will be able to sue for breach of contract – which may lead to compensation representing the notice period (see the example below).

Written job offer

If this is an unconditional offer, a contract of employment exists from the moment the employee accepts. Once accepted, if the employer attempts to withdraw the offer the employee can claim compensation for breach of contract, which may include payment for a notice period.

If a job offer is conditional, for example subject to checking references, the employer may be able to withdraw the job offer (see Is an employer bound by job offers which are conditional on satisfactory references or other conditions?).

Discrimination

If a job offer is withdrawn because, for example, the employer decides that making reasonable adjustments to accommodate a disabled prospective employee would be ‘too difficult’, there would be grounds for a discrimination claim (Kenny v Hampshire Constabulary (1998)).

Employee withdraws

If an employee wants to withdraw from the contract after they have accepted an offer, technically that employee would be in breach of contract. However it is rare for an employer to seek compensation for a breach of contract from an employee who has changed their mind. It is only where a very senior new employee changes their mind that the decision is likely to cause significant costs to the employer. So although there is a technical breach it is not often financially worthwhile for employers to sue as they would need to show that they have suffered actual losses as a result of the employee’s breach.

If an unsuccessful applicant succeeds in a discrimination claim, there is theoretically no limit to the amount of compensation the employment tribunal can order. Considerable legal costs are also inevitable.

An unsuccessful job applicant will have to prove to the employment tribunal that:

• they would have been offered the position had it not been for the discriminatory criteria, and/or
• their application was not considered at all because of the discriminatory wording, in which case they may be entitled to an injury to feelings award.

Realistically the most likely compensation will therefore be restricted to an injury to feelings award (see How is discrimination compensation calculated and can employment tribunals make large awards? in our Tribunal claims, settlement and compromise Q&As).

An employer cannot take any form of positive action at the point of recruitment or promotion unless it can satisfy a number of specific requirements.

An employer can take positive action if it thinks that people who share a particular protected characteristic suffer a disadvantage, or their participation in an activity is disproportionately low. The provisions can be used by employers to address under-representation of, for example, women in the workforce.

The Equality Act 2010 has two main sections dealing with positive action:

General provisions (section 158) permit employers to take positive action to enable or encourage persons who share a protected characteristic to overcome or minimise a disadvantage connected to the characteristic, other than in connection with recruitment or promotion.

Positive action provisions relating specifically to recruitment and promotion (section 159) are similar to the general provisions, but focus on treating a person more favourably than another, equally qualified person, in connection with recruitment or promotion. This enables employers to take into account the under-representation of disadvantaged groups when selecting between two equally qualified job candidates.

The provisions are complex and must be handled carefully. The steps an employer takes must be proportionate to meet its needs. This part of the Act is entirely voluntary.

On the other hand, positive action can greatly improve a workplace and its diversity. Transport for London has actively sought to increase the number of employees it has from under-represented groups, including women, people with disabilities and black, Asian and minority ethnic groups. Mentoring schemes have been put in place to benefit women, together with flexible rostering so that staff with childcare responsibilities can pick shifts to suit their commitments. There is also an apprenticeship programme for young women.

Other points for employers to consider

• The question of whether one person is as qualified as another is not only a matter of academic qualifications, but also how it is established who is best for the job (team fit, complementary skills and so on).
• Employers will not be able to automatically treat all people with a particular protected characteristic more favourably than others. Each case must be considered on its merits.
• Candidates for senior roles will have vast and varied experience, so it will be very hard to decide who is ‘equally qualified.’ If employers assess this incorrectly, a discrimination claim may arise.
• When fully implemented, positive action will allow measures to be targeted to particular groups. This includes training and health services.

In some cases it may be hard for employers to show that their belief certain groups are disadvantaged or under-represented is ‘reasonable.’ The Equality and Human Rights Commission has published guidance on positive action and recruitment, including a quick start guide.

Answer:

During the recruitment process it is unlawful for an employer to discriminate against a disabled person:

• in the arrangements made for determining who should be offered employment
• by asking unnecessary health-related questions
• in the terms on which the disabled person is offered employment
• by refusing to offer, or deliberately not offering, the disabled person employment.

Employers should avoid discrimination in:

• describing the job
• advertising the job
• the processes of selection
• the location of interviews
• the timing of interviews
• assessment techniques
• interviewing and selection criteria.

An employer must make reasonable adjustments to make the interview process more accessible. The duty to make reasonable adjustments may not apply where the employer does not know and could not be reasonably be expected to know, that the particular applicant has a disability which is likely to place them at a disadvantage.

For more information on avoiding discrimination during the recruitment process see the relevant related Q&As, especially the Q&A Is it disability discrimination for an employer to ask job applicants to complete a pre-employment medical questionnaire or medical check?.

For information on knowledge of disability see the Q&A Can an employer discriminate without having knowledge of the disability? in our Disability discrimination Q&As.

Robust interview and selection methods should reduce the incentive to use social media to investigate job applicants, however:

• Using sites like LinkedIn may be proportionate, but as a courtesy candidates should be told that vetting of their social media accounts, or other public online activity, is part of your recruitment process.
• Vetting for senior or high profile/public-facing roles may justify more investigation.

If an applicant has locked their social media accounts so that you cannot view them, do not ask them to change their privacy settings so that you can.

Risks

The right to bring discrimination claims remains the greatest risk: it arises before employment starts and compensation for successful claims is uncapped.

If a candidate is not appointed as a result of information gleaned from their online presence, claims available to them may include:

• A breach of the Human Rights Act 1998, which provides a right to respect for private and family life. Although some case law has established (in another context) that employees should have little expectation of privacy in respect of what they post online, claims remain possible.
• A breach of the Data Protection Act 1998, which states that data controllers such as prospective employers should not hold excessive information and should process information ‘fairly’.
• Age discrimination – it has been suggested that the over-50s are more cautious with their social media presence than the under-30s.
• Sex discrimination – information about marital status, numbers of children etc may influence a selection decision.
• Disability discrimination – rejecting a candidate because they have discussed their depression with their friends on social media (for example).
• Sexual orientation discrimination.
• Breach of contract – Facebook has its own terms of service and has threatened legal action against employers that require candidates to disclose their Facebook passwords.

For employers with prospective employees in other jurisdictions, careful legal advice should be taken.

Further information can be found in Acas’ introductory guidance and the Information Commissioner's Office guidance, Employment practices data protection code, which includes guidance on pre-employment screening.

Answer:

An employee has no special legal status during a probationary period. It depends upon precisely what has been agreed between the parties. Employment contracts or offer letters may contain a ‘probationary’ period of, most commonly, three or six months. Also certain statutory terms are implied into all employment contracts and may apply during the probationary period.

Employers can use probationary periods if they wish, although they do not have to. They are a useful way of assessing a new employee’s performance and can assist in easing out an unsatisfactory appointment before they accrue more job security.

The legal and practical issues can arise during probationary periods are highlighted under the following headings:

Probationary clauses

• Probationary period clauses in an employment contract should set out the length of the probationary period and any right to extend it.
• Employers can agree different contractual rights for employees during a probationary period. For example, the employer could pay a lower salary until the employee has successfully completed the probationary period. Some employers insert contractual restriction on benefits during this period, such as gym membership, pensions or company sick pay.

The probationary period

• The employer should have systems for assessing the employee’s suitability and competence during the probationary period, actively manage that process and ensure from the outset that the employee is aware that their suitability will be monitored throughout the probationary period.
• Employers should monitor the employee’s performance during the probationary period and not just wait until the end of the period. Ideally, employers should meet with the employee to provide feedback on whether performance expectations are being met.
• The end of the probationary period should be diarised and a a review meeting should be arranged before that date to discuss how well the probationary period has gone.
• If the probationary period expires without monitoring, the employee may successfully complete their probationary period by default.
• If at the end of the probationary period an employee's performance is satisfactory, the employer should write to the employee confirming their employment and entitlement to extra benefits due on completion of the probationary period.
• Probationary periods do not affect employees’ statutory rights, so an employer must for example, pay the national minimum wage during the probationary period.
• A probationary period will not affect a new employee’s length of service or statutory employment rights. Therefore the right not to be unfairly dismissed which requires a two year minimum period of service for new employees will run from the employee’s original start date, not the end of the probationary period.

Extending the probationary period

• Probationary periods can be extended for say a further period of three or six months if there is a contractual provision to that effect.
• The employer should explain the reason for the extension and what the employee needs to improve in order to pass their probation.
• Any extension should be communicated to the employee before expiry of the initial probationary period and the employer should set out in writing the terms of the extension.
• If the total period of probation is extended, then it would be inappropriate for the employer to unduly restrict the employee’s ability to take holiday.
• The employer should confirm details of the standard that the employee is expected to reach by the end of the extended period.

A rare case on extending probationary periods Przybylska v Modus Telecom Limited, UKEAT/0566/06/CEAshows that an express contractual right for the employer to extend the probationary period, within the initial probationary period, is lost if it does not extend the probation within that initial time period. In this case the dispute was whether an employee should have been paid one week’s pay in lieu of notice or three month’s notice. One week was the notice term in the probationary period, but she was entitled to the longer notice period that applied after the probationary period ended as she was on holiday when her probationary period expired and the employer had not extended the probationary period in time.

Dismissals during, or at the end of, the probationary period

• Employers who are not satisfied with performance or conduct during a probationary period can either extend the probationary period or dismiss the employee.
• If the employer wishes to dismiss at the end of a probationary period the position is the same as dismissing any other employee who has not accrued continuity of employment. Even if the employee does not have the qualifying service required for unfair dismissal the employer should follow their own disciplinary and dismissal procedures and it is sensible to follow the Acas Code of practice on disciplinary and grievance procedures too, being careful to provide the correct notice period as well.
• If the employer does not follow a disciplinary procedure and they give insufficient notice, or if the disciplinary procedure is contractual, then the employer may be in breach of contract.
• During the probationary period most contracts will state that the employee can be dismissed on very short notice anyway, usually one week. After the probationary period notice will increase, at least in line with the statutory minimum.
• Employers will normally wait until the end of the probationary period before making a decision to terminate the employment. However, in some circumstances, early termination may be appropriate.
• Generally employees who do not have sufficient continuity of service to qualify for unfair dismissal claims can just be dismissed by giving the correct notice period anyway. Therefore an employer does not have to wait until the end of a probationary period to dismiss.
• If it is clear that the employee is not suited to the job, termination before the end of the probationary period is an option. If dismissal before the expiry of the probationary period is implemented the employee will be entitled to notice, or a payment in lieu of notice, in the normal way.

Potential claims

New employees need two years service with their employer (from the original start date, not the end of the probationary period) to bring a claim for unfair dismissal.

Therefore dismissal during, or at the end of, the probationary period should not normally lead to an unfair dismissal claim. However there are at least four potential claims which may arise:

• Automatically unfair dismissal - in some situations the two years continuity of employment is not needed, such as dismissals relating to pregnancy.
• Wrongful dismissal/breach of contract – if an employer dismisses in breach of the employment contract, for example by failing to follow a contractual disciplinary procedure or not giving the correct notice, the employee can bring a wrongful dismissal claim.
• Discrimination.- a discrimination claim is possible if the probationary employee believes that they have been discriminated against.
• Whistleblowing - a probationary employee who has some concerns about certain types of wrongdoing can present a claim regardless of the length of time they have been with the employer.

Longer serving employees, who were perhaps subject to a probationary period following a promotion, may have accrued the right to bring a normal unfair dismissal claim. Such employees would also need to be paid their statutory minimum notice entitlement, which would be calculated by reference to their length of service.

Holiday rights during a probationary period

Holiday rights do accrue during a probationary period. However this does not mean the probationary employee is actually entitled to take holiday during their probationary period.

Under the Working Time Regulations 1998 (WTR) holiday rights start to accrue from the first day of employment. However some employers do provide that holiday should not be taken during the probationary period, or that holiday rights are restricted. The easiest way for employers to approach this is to differentiate between the amount of holiday an employee is entitled to and the time at which it may be taken. Employers should bear in mind the following:

• If the employer agrees that the employee is not allowed to take time off during say, a three month probationary period, the amount of holiday would still accrue during that period.
• If a probationary employee leaves during the probationary period they would be entitled to pay in lieu of untaken and accrued holiday entitlement.
• Exactly when holiday is taken it is a matter for agreement between employer and employee.
• Employers can let employees take time off in advance of it being accrued, or they can specify that only leave which has accrued may be taken.
• To restrict holidays, employers may wish to run an accrual system of holiday entitlement that is built up over the first year of employment.
• All full-time employees are entitled to a minimum of 28 days' holiday each year in accordance with the WTR. In the absence of a written statement of terms and conditions giving more than the minimum entitlement, employees are entitled to 5.6 weeks holiday per year (28 days for full-time employees). Holiday therefore accrues at 2.33 days per month. So, assuming they did not take any holiday, a full time employee accrues:
  • seven days holiday pay during a three month probationary period, or
  • 14 days holiday pay during a six month probationary period.
• Employers cannot round down holiday entitlement, but may round it up to the nearest full day.
• If employers allow employees to take holiday during the probationary period they must ensure their contracts and policies contain a right to deduct overtaken holiday entitlement that has not accrued, from their final pay.

No, although developments in many areas of employment law could have an impact on what employers can do during the recruitment process.

Immigration Act 2016

The Immigration Act 2016 received Royal Assent on 12 May 2016 and some provisions relating to illegal working are already in force.

From 6 April 2017 further provisions on legal working will come into force, notably a new Immigration Skills Charge. This will apply to employers who sponsor skilled workers from outside the EEA.

The new UK Immigration Rules mostly relate to Tier 2 sponsors. This is a UK visa category allowing skilled professionals from outside the EEA to work in the UK. An applicant must have a UK job offer before submitting their application, and the employer must have a Tier 2 sponsor licence. The key points are that:

• the new fee applies to migrants sponsored under Tier 2
• the fee will cost employers £1,000 for each employee’s annual visa. Tier 2 general visas are usually issued for three years, so the usual immigration costs for an application will be £3,000
• a reduced rate applies for small or charitable sponsors
• the charge will apply to both the Tier 2 general visas and related intra-company transfer categories
• exemptions mean that the skills charge will not apply when sponsoring some Tier 2 migrants (such as those sponsored before 6 April 2017 applying from the UK to extend their stay with the same or different sponsor, and certain graduate or PhD level trainees).

More information is available from GOV.UK

Internal recruitment practices in the public sector

In January 2016 the (now defunct) Department for Business, Innovation & Skills issued a call for evidence on the use of internal-only recruitment practices in the public sector, why this is happening and whether government action is needed to promote fair and open recruitment. The call for evidence ended in April 2016 and the feedback is now being reviewed. More information is available from GOV.UK

Brexit

For information on what Brexit may mean for employment law, read the blog by our Public Policy Advisor (Employer Relations) and visit our resource hub.

EU discrimination legislation

European Directives dealing with inequality and less favourable treatment, which may have an impact on recruitment and selection in the UK, include:

• Equal Treatment Framework Directive (2000/78/EC)
• Equal Treatment Amendment Directive (2002/73/EC)
• Race Directive (2000/43/EC)
• Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services (2004/113/EC)
• Directive on equality between men and women in matters of employment and occupation (2006/54).

Other discrimination legislation

• Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034)
• Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551)
• Agency Workers Regulations 2010 (SI 2010/93).

Ex-offenders

Legislation covering convicted offenders and the vetting and barring scheme for people working with children and vulnerable adults:

• Rehabilitation of Offenders Act 1974
• Rehabilitation of Offenders 1974 (Exceptions Order) 1975
• Safeguarding Vulnerable Groups Act 2006.

See ‘How should employers deal with job applicants who have criminal convictions or spent convictions?’

Eligibility to work in the UK

The main Act dealing with eligibility to work in the UK is the Immigration, Asylum and Nationality Act 2006. The following EU and national legislation may also be relevant:

• Immigration (European Economic Area) Regulations 2006
• Freedom of Movement Directive (2004/38/EC)
• Commonwealth Immigrants Acts 1962 and 1968
• Immigration Act 1971
• Immigration and Asylum Act 1999
• UK Borders Act 2007
• Borders, Citizenship and Immigration Act 2009.

See ‘Should an employer ask a job applicant if they are a foreign national and if they can work in the UK?’

Data protection

The Data Protection Act 1998 puts restrictions on what data employers can collect and use in the recruitment and employment process, and defines certain types of information as ‘sensitive data.’

Northern Ireland

Not all of the legislation referred to (for example the Equality Act 2010) applies to Northern Ireland. More information is on recruitment and selection in Northern Ireland is available from the Labour Relations Agency.