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Happy Hiring: Practical recruitment tips

We know that trying to find the right person to fill your vacancy can be a difficult, not to mention, expensive and time-consuming process, but where a disgruntled candidate alleges that they have been treated unfairly or discriminated against, your recruitment process has potential to cause big headaches. Our Employment team have outlined three recruitment tips below to help you avoid facing any legal challenge from disgruntled job applicants.

1. Appropriate advertisement

Ensure that your job advertisement is Equality Act complaint, and there is no scope for this to be deemed to exclude candidates based on any protected characteristic. While it is important to ensure that applicants know the position that they are applying for, and we appreciate that you want to avoid inviting applications from candidates who do not have the requisite skills or experience for the role, we advise against including excessive detail in the application. Listing essential and desirable criteria in the application can be a useful way for applicants to consider their suitability for the role (and therefore hopefully limit the need for you to spend considerable time dealing with applications from candidates who do not have the necessary qualifications for the role), but be mindful not to include potentially discriminatory wording or criteria and make sure that the wording is gender neutral.

The Northern Irish case of McCoy v James McGregor & Sons Ltd, Dixon and Aitken 00237/07IT provides a stark reminder of the importance of tailoring your language in job applications. In this case the Tribunal’s finding of age discrimination against the company was largely premised on the fact that the company’s job advertisement referred to the need for “youthful enthusiasm”. While it can be tempting to use punchy phrases, there is greater potential for such phrases to get you into hot water as they can be open to misinterpretation. We therefore always advise that you play it safe and get professional advice if you are unsure about the appropriateness of the wording of your advertisement.

2. Document your decision-making

Lawyers are renowned for their love of a paper trail, but with recruitment processes your golden rule should be that all decisions are clearly documented. It is highly unlikely that you will be able to offer a position to all applicants and therefore some people will be disappointed, and therein lies the risk of potential challenge to your decision. This means that it is crucial to have clear evidence of all decisions reached, which should have been made on a reasoned, objective, and non-discriminatory basis. We recommend retaining (at least for a 6 month period) copies of job descriptions, selection criteria, interview questions/notes, the results of any recruitment tests, which together with your recruitment, equal opportunities and diversity and inclusion policies, will be crucial evidence in defending any challenge you may receive from a disgruntled applicant.

The duty of disclosure in litigation in extensive so your hastily scrawled notes taken at an interview, and emails / messages exchanged with colleagues in which you express a throwaway comment about an applicant unintended for public view, would be disclosable and could be persuasive to the Employment Tribunal finding that an applicant had been unlawfully discriminated against. In N Clements v Guy’s and St Thomas’ NHS Foundation Trust ET2303535/2018, the Employment Tribunal specifically referred to the recruiting manager’s “illuminating” handwritten notes which stated the applicant was too senior for the role on offer in making its finding of age discrimination.

As part of your recruitment process we consider it imperative that your hiring managers are specifically trained in equality and diversity as they are the first contact the applicant has with the company. Our experienced Employment Team can provide you with a bespoke training programme and a suite of policies and procedures which can help safeguard your recruitment practices so please do not hesitate to get in touch if this would be of interest.

3. Consider reasonable adjustments

All employers have a duty to make reasonable adjustments for disabled job applicants, and therefore we recommend that you build into your recruitment process making enquiries with applicants as to any adjustments that they may require. It is important not to disregard non-visible disabilities, or to rely too heavily on historic or automated recruitment processes, which may, in particular, be discriminatory towards neurodivergent applicants.

In AECOM Ltd v Mallon [2023] EAT 104, the Employment Appeal Tribunal found that AECOM discriminated against a dyspraxic applicant by requiring them to complete a form online as part of the recruitment process. This case illustrates that the importance of exploring with applicants the reason why they can’t or are unable to comply with certain recruitment processes, and to make adjustments for them where appropriate. Admittedly this can take longer, and it means that your processes cannot be 100% automated, but investing that extra time to understand and address any potential issues regarding the recruitment process may not only avoid you facing expensive litigation but it could mean that you do not lose out on finding the best candidate for the role, who otherwise wouldn’t pursue their application.

Our team at Clarke Willmott have extensive experience providing reliable, swift and commercial support to employers facing issues arising under the Equality Act. We would be pleased to assist with any queries you may have and encourage you to get in touch should you wish to discuss this in further detail.

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Your key contact

Kathryn Walters

Senior Associate

Taunton
Kathryn is a senior associate in the Employment team based in our Taunton office. She is a personable, conscientious and commercially savvy lawyer who goes the extra mile for her clients, offering pragmatic, timely advice and support.
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