Overview

There is no single Act governing recruitment and selection, but there are many statutes dealing with the employment relationship that have an impact on pre-employment issues. The most significant example is the Equality Act 2010, which makes it unlawful for employers to discriminate against job applicants (and existing workers) because of one of the ‘protected characteristics’: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

Other relevant statutes include:

  • Employment Rights Act 1996 - statement of terms and conditions
  • Working Time Regulations 1998 - statutory rights such as hours, rest breaks, holidays
  • National Minimum Wages Act 1998 - minimum pay for workers and employers (rates are reviewed annually by government)
  • Transfer of Undertaking (Protection of Employment) Regulations 2006 (as amended) – deals with issues such as continuous employment where new businesses take over an existing workforce
  • Data Protection Act 1998 - governs the lawful processing of applicants’ data
    Immigration, Asylum and Nationality Act 2006 - governs checks on right to work in the UK.


Also on this subject:

Recruitment: an introduction (factsheet)
Case law on discrimination in recruitment 
References Q&As 
Case law on providing references

Under s39(1)(a) of the Equality Act, an employer can discriminate in arrangements for advertising jobs, the actual content of the job ad, the 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, for example, bring a claim of age or sex discrimination.

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

Employers should keep job titles gender neutral (‘bartender’ instead of ‘barman’, for example) and avoid naming qualifications unless it is possible to objectively justify why applicants would need them. For example, requiring ‘5 GCSEs’ of candidates may discriminate against both older candidates and those educated outside of the UK. It is safer to be specific about the skills required.

‘Recent graduate’, ‘at least three years’ experience in a similar role’ and similar specifications 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 (for example, in the case McCoy v McGregor & Sons Ltd (2007), 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, mobility and the ability to work late should only be included if they are genuine requirements of the role and, as such, likely to be a term of the employment contract. If a job does have a physical component (driving, heavy lifting, ability to work at heights and so on), this should be described clearly so that disabled candidates can assess whether reasonable adjustments to the role might be possible.

Ideally the job advertisement should invite disabled applicants to contact the employer to identify any additional support they may need during the recruitment process.

Discriminatory criteria

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

  • to protect the health and safety of young workers (the EU Young Workers ' Directive 1999, which is implemented in UK law by regulations, protects young workers under 18 from working with toxic materials or in physically demanding roles)
  • There is a genuine occupational requirement for a person of a certain characteristic to carry out particular duties.

An occupational requirement can arise under the Equality Act 2010 for specific jobs reserved for people with a protected characteristic. This exception is very limited indeed and will not happen often.

The occupational requirement for the role may be specified during recruitment, training and so on. The employer must be able to show that the occupational requirement is a ‘proportionate means of achieving a legitimate aim’; in other words, it has been put in place for a sound and justifiable business reason.

If it is an occupational requirement for job applicants 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 Schedule 9 Part I of 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 our Religion and belief discrimination Q&As).

The Equality Act 2010 (section 158) permits employers to take positive action to:

  • enable or encourage people who share a protected characteristic to overcome or minimise a disadvantage connected to that characteristic
  • meet the needs of people who share a protected characteristic where those needs are different to those who do not have that characteristic
  • encourage and train people from under-represented groups, to help them participate in an activity in which their participation is low.

Section 159 of the Act permits employers to treat one 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.

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

Positive action can greatly improve workplace 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 to consider include:

  • The question of whether one person is as qualified as another is not only a matter of academic qualifications but also how the employer has decided who is best for the job (team fit in accordance with the person specification, high levels of desirable 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 extensive 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 at particular groups.

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

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 advertise vacancies widely and avoid focusing recruitment exclusively in one place.

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 and 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.

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

If applications forms are used, they should focus on name, contact details, skills, qualities and experience relating to the job, although many employers now remove names when shortlisting to ensure gender and race fairness.

Employers should offer to supply application forms in an alternative format to allow disabled candidates to present their answers using the best method for them. Methods for employers to consider may include larger fonts for written material, braille or recording information verbally.

Applicants who respond must be asked to consent to the information being processed by the prospective employer as required by the Data Protection Act 2018. If the employer plans on taking up references before interviews take place, it can ask for referees’ contact details 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 such as the above could lead to a risk of unlawful discrimination if factored into any processing or decision making.

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 (see s39 of the Equality Act 2010 which covers these issues for all protected characteristics).

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.

Where it is clear that a candidate will be substantially disadvantaged by one or more aspects of the selection process, the employer will be required to assess what, if any, reasonable adjustments can be put in place to make the interview process more accessible. The duty to make reasonable adjustments does not arise where the employer does not know, and could not be reasonably be expected to know, that a particular applicant has a disability which is likely to place them at a disadvantage or what the particular disadvantage is.

For more information on knowledge of disability see our Disability discrimination Q&As.

Permitted questions

It is generally unlawful to ask about a candidate’s health before interviewing them but are exceptions to this rule under the Act where the employer needs to:

  • decide if reasonable adjustments are needed in the selection process (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
  • monitor or improve its workplace diversity.

It is not usually discriminatory to ask if an applicant believes themselves to be disabled on the application form provided it is made clear that the purpose is making reasonable adjustments to the interview process in order to make it more accessible.

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. Some job candidates who would be protected by the Act will decline to disclose a disability and so cannot take advantage of that provision. They may fear disclosure will reduce their chances of being appointed. They may be more likely to disclose their disability following their appointment, perhaps via a sensitively worded initial health questionnaire.

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. This is likely to be regarded as the employer making a presumption that a disabled candidate will have a poor attendance record because of their disability.
  • 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 it will be possible to discuss any reasonable adjustments the applicant may require.
  • People must not be 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 can still 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. In one case, it was found not to be discriminatory to actually refuse a job offer to a candidate with a number of significant physical impairments as the job involved working in a high risk environment in Dubai (see Owen v Amec Foster Wheeler Energy, 2019).
  • Data Protection Act 2018 issues may also arise as information about a person’s health condition is sensitive personal data.

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 within the local community and the national labour market.

Employers should monitor inclusion and diversity to check that their equality policy is working effectively. Public sector employers have an additional duty on this under the public sector duty provisions in the Equality Act. They have to ensure that in the exercise of their functions they are aiming to eliminate discrimination, advance equality and foster good workplace relations. They are therefore likely to monitor even at this preliminary stage.

However, asking individual applicants questions about potentially discriminatory matters 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, who leaves and who is dismissed.

If such monitoring information is gathered, it constitutes sensitive data under the Data Protection Act 2018. For more information on handling sensitive data see our Data protection, surveillance and privacy at work Q&As.

Employers should initially assess all applicants on their skills, qualifications and ability to do the job. Some employers, however, ask applicants to provide details about previous convictions for criminal offences on application forms.

There may be some complexities for employers to deal with subsequently, depending on whether convictions are spent or unspent, the nature of the role on offer and whether the role is exempt or not exempt from the Rehabilitation of Offenders Act 1974 (Act).

Great care must be taken by employers as it is against the law to refuse to employ someone based on a spent conviction but 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.

Larger employers sometimes produce guidance notes for applicants which accompany the application form and confirm whether the post is exempt from the Act.  If the post is exempt, all convictions spent or unspent must be disclosed, and the job application form should clearly state the job is 'exempt from the Rehabilitation of Offenders Act 1974'. If the post is not exempt, applicants do not need to provide details about previous convictions which are ‘spent’.

While there is a clear general rule about allowing certain convictions to become spent, there are many exceptions depending on the type of vacancy. 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.

Employers should seek legal advice when in doubt as to whether they can require applicants to disclose their spent convictions. Where a candidate is required to do so but refuses, the prospective employer would be within its rights to decline to take the application any further as the candidate has demonstrated that they would not be bound by any mutual trust and confidence which will arise once a contract is entered into.

Nacro

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 forms. For example, it suggests that employers:

  • should remove criminal record disclosure questions from the first application stage of the recruitment process. This ensures that all applicants are assessed on their skills, qualifications and ability to do the job.
  • ask questions in relation to criminal records at a later stage in the recruitment process
  • avoid a Yes/No tick box approach to criminal record declarations. Detail and context surrounding the criminal record will 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 on this subject, see Nacro guidance on asking about criminal records and our pre-employment checks guide.

The government has also produced guidance on employing prisoners and ex-offenders.

DBS checks

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.

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. The 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.
  • 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 will aim 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. There is no obligation to do this and there are benefits as well as disadvantages in doing so. 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.

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.

Automated selection

Employers are increasingly turning to algorithms to conduct this preliminary stage of recruitment. Although automated selection processes of individuals are covered by the Data Protection Act 2018 there is currently no regulation of fair and diverse selection in terms of this approach. It is therefore important for the employer to ensure this type of pre-selection process operates as inclusively as possible so as to avoid bias being introduced into the process.

Robust interview and selection methods should reduce the incentive to use social media to investigate job applicants. Employers’ use of sites like LinkedIn must be proportionate, and candidates should be told that vetting their social media accounts, or other public online activity, is part of the recruitment process and their permission sought to do so. Any unwanted intrusion into an individual`s LinkedIn pages by a prospective employer is likely to be a breach of privacy under the Human Rights Act 1998.

Employers should consider that:

  • Any processing of that information must comply with the Data Protection Act 1998 which requires permission from the candidate.
  • Vetting for senior or high profile/public-facing roles may justify more investigation.

If an applicant has locked their social media accounts so they cannot be viewed, an employer should not ask them to change their privacy settings.

Risks

The right to bring discrimination claims remains the greatest risk in using social media in this way. 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 2018, 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 – for example, rejecting a candidate because they have discussed their depression with their friends on social media.
  • 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 jurisdictions outside the UK, careful legal advice should be taken.

Further information can be found in Acas’ introductory guidance on using social media during recruitment and the Information Commissioner's Office guidance, Employment practices code (pdf), which includes guidance on pre-employment screening.

Employers should consider potential disability and health and safety issues when conducting interviews. After preparing the shortlist and inviting the candidates to interview, employers should find out whether special arrangements will be necessary (for example, it may be appropriate to offer to pay travel expenses).

Employers should notify candidates in advance if they will be required to undergo psychometric or written tests, as some may need reasonable adjustments to be made (see section on Disability). In one case, a candidate with Asperger’s syndrome was required to undergo a multiple choice online test when applying to be a government lawyer. It was found that this process disadvantaged her and the legal service had directly and indirectly discriminated against her and failed to address their duty to make reasonable adjustments (see Government Legal Service v Brookes, 2017).  

If employers are checking references in advance of the interview, they’ll need the candidates’ permission to do this see (see References Q&As).

At this stage it is not necessary to request proof of the right to work in the UK, identity or qualifications – that should come later in the recruitment process.

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

The normal rules of contract apply to employment contracts (although there are some statutory rules imposed on whatever the employer and employee agree) and verbal agreements can be binding. This means that an employment contract can be formed verbally at the interview stage if an employer makes an unconditional offer of employment, which is clearly accepted by the employee.

Many employment contracts are a mixture of written and oral terms. The problem with verbal agreements is that terms and conditions 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’s employment.

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

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. It is never advisable to make a binding and unconditional job offer in this way as there will always be further checks to be made before the employer can be satisfied that they want to make the offer unconditional. 

Written statements

Even if a verbal agreement is made at the interview, both employees and workers  are entitled to a document summarising the main conditions of employment (known as a ‘written statement of particulars’) when they start work (the law changed to include workers in this right on 6 April 2020). Employees are entitled to a fuller statement, including pension entitlements, disciplinary procedures and so on, 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 and covers more than the basic essentials required by the Employment Rights Act 1996.

Future job offers

Some employers send out what is really a future offer (or an executory contract) following a successful interview, 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.

Withdrawing job offers

The basic position in contract law 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.

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 under the Equality Act 2010. In one case, decided under the previous disability discrimination legislation but still applicable, it was found that the employer in effect `jumped the gun` by not looking more thoroughly into what reasonable adjustments it could make if it offered the job to the candidate (see Kenny v Hampshire Constabulary, 1998). 

Employee withdraws

If an employee wants to withdraw from the contract after they have accepted an offer, technically they 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. Typical losses might be the cost of agency staff to fill a gap before a new employee is recruited into the post as well as the cost of further recruitment.

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

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, it decides that  the references are unsatisfactory, it 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.

Many employers seek references after a 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.

It is now generally the case that references follow a prescribed formula or tend to be limited to a factual description of the duties of the job and the dates of employment. This is to ensure that no claims can be made against the provider of a reference for statements which are alleged to be untrue or not properly supported by the facts.

Nevertheless a failed job candidate has no right under the Data Protection Act 2018 to see the contents of a reference provided by a third party even under a subject access request.

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

Health-related questions

The Equality Act sets out the circumstances in which an employer can ask pre-employment health-related questions. Some questions are allowed for certain specified purposes, for example, in order to 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 (for example, heavy lifting).

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

If an employer (or a recruitment agency acting on its behalf) asks an unlawful question about the health of a disabled applicant during the recruitment process, the organisation may face a disability discrimination claim. If this is the case, the ‘burden of proof’ shifts to the employer and it will have to prove that no discrimination took place and establish a reason why the candidate was not accepted.

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.

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. Certain statutory terms are implied into all employment contracts and may apply during the probationary period.

Probationary periods are a useful way of assessing a new employee’s performance and can assist in easing out an unsatisfactory appointment. However, where employees are dismissed solely because they have `failed` a probationary period, they may have a claim.

Contract clauses

Clauses in the 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 their probation. Some employers apply contractual restrictions on benefits during this period, such as gym membership, pensions or company sick pay.

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 also not affect a new employee’s length of service. Therefore the right not to be unfairly dismissed, which requires a two year minimum period of service, will run from the employee’s original start date, not the end of the probationary period.

During probation

The employer should have systems for assessing the employee’s suitability and competence during their probation and ensure from the outset that the employee is aware that their suitability will be monitored throughout the probationary period. If the probationary period expires without monitoring, the employee may successfully complete their probationary period by default.

Ideally, employers should meet with the employee regularly to provide feedback on whether performance expectations are being met.

The end of the probationary period should be diarised and a review meeting held before that date to discuss how well the probationary period has gone. If an employee's performance is satisfactory, the employer should write to the employee confirming their employment and entitlement to extra benefits on completion of the probationary period.

Extending the probationary period

Probationary periods can be extended for a further period of, say, 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.

A rare case on extending probationary periods, Przybylska v Modus Telecom Ltd, 2007, shows 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 time frame. In this case the dispute was whether an employee should have been paid one week’s pay or three month’s pay in lieu of notice. One week was the notice term during the probationary period, but the EAT found she was entitled to the longer notice period that applied after her probation ended as she was on holiday when her probationary period expired and the employer had not extended her probation in time.

Dismissals

Employers that are unsatisfied with the performance or conduct of a probationer can either extend the probationary period or dismiss the employee.

If the employer wishes to dismiss the employee at the end of a probationary period, the position is the same as dismissing any other employee who has not accrued the qualifying service required for an unfair dismissal claim. The employer should follow its own disciplinary and dismissal procedures in accordance with the Acas code of practice on disciplinary and grievance procedures and provide the correct notice period.

If the employer does not follow a disciplinary procedure and gives insufficient notice, or if the disciplinary procedure is contractual, then the employer may be in breach of contract.

Most contracts will state that the employee can be dismissed on very short notice during the probationary period, 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 deciding to terminate the employment. However, in some circumstances, early termination may be appropriate if it is clear that the employee is not suited to the job. 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.

For more on this subject, see our Unfair dismissal Q&As.

Potential claims

Employees need two years’ service from the original start date, not the end of their probationary period, to bring a claim for unfair dismissal so a dismissal during, or at the end of, the probationary period would not normally lead to an unfair dismissal claim. However there are at least four other potential claims which may arise:

  • Automatic unfair dismissal. Dismissing someone for a pregnancy- and maternity-related reason, for making a protected disclosure under the whistleblowing rules or for asserting health and safety rights is automatically unfair and requires no minimum length of service to make a claim.
  • Wrongful dismissal/breach of contract. A wrongful dismissal occurs if an employer dismisses an employee in breach of the employment contract, for example, by failing to follow a contractual disciplinary procedure or not giving the correct notice. Compensation for successful claims will be for notice pay and any benefits accrued during the notice period.
  • Discrimination. A discrimination claim is possible if the probationary employee believes that they have been discriminated against.

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.

Holidays

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, 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.
  • In the absence of a written statement of terms and conditions giving more than the statutory minimum, 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 the employees final pay.

For more on this subject, see our Annual leave and holiday pay Q&As.

Q&As

Excluding candidates from the outset because their right to work is not established is potentially discriminatory. However, it is acceptable to explain that a right to work in the UK will need to be established later on in the recruitment process. All candidates must by law be checked by the prospective employer for their entitlement to work in the UK (see Government guidance on Checking a job applicant's right to work).

The candidate may be able to obtain that right, for example, they may be entitled to sponsorship or another type of visa (such as the graduate route visa for certain non-UK students graduating from summer 2021). Alternatively, they may have a time-limited work permit rather than an ongoing right to work. There are now five tiers of permitted work categories under UK immigration law, all of which require visas.

Since employers are legally required to check a prospective employee’s eligibility to work in the UK, they can say that the role is UK based and that starting employment will be conditional on the candidate’s right to work in the UK, and that sponsorship may be available if appropriate.

Key points:

  • During recruitment, employers should not discriminate on the grounds of race or nationality. For example, it would be discriminatory to impose conditions that an applicant must have British nationality or has been resident in the UK for a specified number of years.
  • Employers should consider all individual applications equally and fairly regardless of whether sponsoring a candidate may be needed.
  • Employers can make the final offer of employment conditional on the proposed employee obtaining appropriate immigration status and incorporate this as a contractual term.
  • Refusing to accept applications from people who do not yet have their working permission in place has a disproportionate impact on foreign nationals and could be indirect race discrimination (see Osborne Clarke Services v Purohit, 2009). Although immigration law has changed  in relation to who can work in the UK since that case was decided, the fact that the recruitment portal in that case automatically rejected any candidate who would require a particular form of visa entry to work in the UK was found to be discriminatory .  

The Equality Act 2010 statutory Code of Practice states that UK work eligibility should be verified in the final stages of the selection process rather than at the application stage. Appointments should be based on merit rather than other factors; employers can apply for work permits and should not exclude potentially suitable candidates from the recruitment process.

Government guidance, Avoiding discrimination while preventing illegal working: code of practice, states that job applicants should not be treated less favourably if they produce acceptable documents showing a time-limited right to work in the UK.

EU, EEA and Swiss nationals: From 1 January 2021 Irish citizens can work in the UK without a visa. Other EU, EEA and Swiss nationals cannot do so. In summary, a points-based system applies but only for skilled workers. Some EU EEA and Swiss nationals will qualify as settled in the UK as long as they make an application to be settled prior to 30 June 2021. It would be prudent, perhaps once a conditional offer is made, to check whether an individual qualifies for settlement, has applied or intends to apply for this status to avoid being regarded by an employer as only likely to qualify to work in the UK as a Tier Worker. 

For more detailed information on this aspect of the recruitment process see our Brexit FAQs for people professionals.

Employers may be faced with job applicants who can only work in the UK if sponsored. An employer must not discriminate by refusing to interview a candidate who requires sponsorship, but if the organisation would rather not incur the financial and administrative burden of sponsorship and associated costs, to what extent can it refuse to offer the role, using costs as an excuse?

The short answer to this question is that employers can use sponsorship costs as a basis for refusal if they budget for discrimination claims, because extra cost alone is not an excuse. The complexities of the situation are explained below.

Sponsorship

The UK immigration points-based system includes sponsorship from 1 January 2021 for EU, EEA and Swiss nationals who do not have settled status or do not apply for settled status before 30 June 2021.

Sponsorship fees start at just under £1,500 for a sponsorship licence. Visas are also expensive (the fees are linked to the size of the sponsoring organisation) and sponsoring a five-year visa can cost employers up to £10,000 per candidate. However, employers may not know in advance what the cost will be as this depends on what sort of visa applicants may need.

If employers prevent someone who requires visa sponsorship from applying for a role, this may lead to a discrimination claim based on s39(1)a) of the EQA which prohibits discrimination in the arrangements for who should be offered employment. 

Discrimination claim

Case law, including a leading Court of Appeal decision, is that costs alone cannot be relied on to defend a discrimination claim. If an employer decides not to sponsor a prospective employee because of the sponsorship costs, it is running the risk of having to pay discrimination compensation.

Note however the approach taken to this in Heskett v Secretary of State for Justice (2020) an age discrimination case. A probation officer in Kent claimed a new pay progression system disproportionately disadvantaged younger employees like him. The austerity cuts meant that he would not reach the top of the pay band for 23 years, whereas he would have reached the top in eight years before the cuts. He claimed indirect age discrimination under the Equality Act 2010.

The provision of the new pay system was held to be discriminatory on grounds of age but could the employer justify this discrimination by proving a legitimate and justified aim? Did saving costs due to the public sector pay freeze justify discriminating against younger employees by reducing the pay progression? Previous case law said that costs can only be relied in a justification argument if there were other factors too.

The Court of Appeal decided that the key question is whether the legitimate aim was ‘solely to avoid increased costs’. The court found that cutting costs and absence of means were not the same. In this case, the employer had to reduce its costs due to economic pressures. The discrimination experienced by the officer was, therefore, justified as the employer had a legitimate aim not based on costs alone. This approach to the justification defence (the so-called ‘costs-plus approach’) is therefore more likely to succeed than relying on costs alone. Public sector employers, for example, will need to balance costs in terms of also preserving resources for the benefit of service users. 

A costs-alone decision not to recruit someone (because the visa sponsorship would be too expensive) is therefore unlikely to protect an employer from a discrimination claim. Employers should consider all applications equally, regardless of whether the cost of sponsoring a visa is expensive, or risk defending a more expensive discrimination claim.

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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.

Employers should have prepared consistent questions before the interview which will be put to each candidate.

Interview questions should focus on the candidate's ability to fulfil the functions of the advertised role 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.

In the case of Woodward v Corus Hotels plc (2006), a female candidate for a receptionist post was asked a number of sexist and personal questions about her private life, such as whether she intended to have children and so forth. She felt the questions were deliberately aimed at putting her off from being considered for the post. She won a sex discrimination claim in the employment tribunal and was ultimately awarded £4,000 for injury to feelings and £525 for loss of earnings.

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.

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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 which may lead to an award of financial loss suffered as a result, and/or
  • their application was not considered at all because of alleged discriminatory barriers in the selection process 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 our Tribunal claims, settlement and compromise Q&As).

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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 2018.

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.

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