This article provides an overview of the employment law you need to know and highlights the key legal issues a business needs to consider when hiring an employee. You should talk to a lawyer for a complete understanding of how it may affect you.
Before advertising to hire an employee
Ensure all staff involved in the recruitment process have had equal opportunities for training (and they continue to receive it while working for the business).
Draw up the following documentation:
- A job description, which sets out the title and main purpose of the job, the place of the jobholder within the business and
the main tasks or responsibilities of the post. - A person specification details the experience, expertise and qualifications, skills and abilities necessary for the job. Split the requirements between those “essential” for the job and those merely “desirable”.
- Ensure that none of the requirements in either document discriminates against any group of employees. Consider whether any requirements for specific qualifications, working hours or times, travel, age ranges, or dress are necessary for the role.
- Consider whether the job needs to be full-time or open to part-time, home working, flexible working or job sharing. If a
business specifies that the job is full-time, it may need to justify its decision.
The advertisement to hire an employee
Should the job be advertised internally, externally or both? Consider using specialist publications, websites and agencies to target different communities, ages and sexes.
Think carefully when writing the advert. Protection from discrimination because of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation) covers all areas of employment, including job adverts. For example, avoid using language that might imply only someone of a certain age would be suitable (for example, “mature”, “experienced”, or “young”).
Inform any employees absent from work (including women on maternity leave or those on long-term sick leave) of the vacancy
to enable them to apply. Failure to do so could amount to discrimination.
The application
Use a standard application form to compare individual applicants’ answers against the selection criteria and to help avoid potential unlawful discrimination claims.
Draw up a shortlist using the same job description and person specification criteria. Every applicant should be marked against the same criteria to help avoid any potential unlawful discrimination claims.
If a business is making redundancies, it must consider applications for suitable vacancies from employees selected for redundancy ahead of external applicants. A business must offer any women selected for redundancy while on maternity leave a suitable alternative vacancy (where one is available) in priority to other potentially redundant employees.
Pre-employment health questions
In most cases, a business cannot ask potential recruits questions about their health. For example, businesses should avoid asking about applicants’ sickness absence records. However, in some circumstances, a business is entitled to ask health-related questions. For example, asking an applicant for a job in a warehouse whether they have any health problems that may prevent them from lifting or handling heavy items. Businesses can also check whether an applicant has any special requirements it needs to take into account when arranging interviews, such as wheelchair access.
The interview
Think about when and where the interview should take place. For example:
- • check whether the interview venue has access for disabled candidates;
- interviewing during a religious holiday could discriminate against applicants from that particular religion; or
- candidates with children may ask for an interview to be conducted at a particular time.
Ask all shortlisted candidates the same or similar questions to compare answers and to avoid the possibility of a discrimination claim.
Avoid asking questions about a candidate’s personal life unless they are directly relevant to the job’s requirements. For example, asking a female candidate whether she plans to have children is unacceptable.
Keep a paper trail throughout the process to demonstrate how the business reached its decision to select the successful
candidate. This should include:
- • selection criteria;
- notes on the shortlisting process;
- interview questions;
- notes of panellists’ assessments of the interviewees.
If requested, it is good practice to provide feedback to unsuccessful candidates. A failure to do so could indicate a
decision-based on discriminatory grounds.
The offer
Make a written offer to the successful candidate. Consider whether to set a time limit for acceptance and specify that
acceptance should be in writing.
A business can make the offer conditional on various criteria, provided they are not discriminatory. For example:
- providing satisfactory references; or
- confirmation that the employee is free to work in the UK or has an appropriate work permit or immigration approval to work.
Before making a job offer, ensure the applicant confirms they are not bound by any enforceable restrictive covenants from their previous job; otherwise, the former employer could sue the business (most likely along with the applicant). Employers use restrictive covenants in employment contracts to protect their business. They restrict the activities of an employee, generally after employment has ended. We frequently draft, advise on and act for clients in disputes over the enforceability of such covenants.
The contract
Consider whether the contract should be permanent or for a fixed term. If a business decides that a fixed-term contract is appropriate, it may need to justify its decision. Remember that an employee on a fixed-term or part-time
contract should not be treated any less favourably than a permanent employee should. For example, they should be allowed access to a company bonus scheme or instead receive an equivalent benefit.
Probationary periods
You can include a probationary period in the contract. This will enable the business to assess the employee and vice versa. It also
gives it the flexibility to dismiss someone using a shorter notice period of at least one week.
Probationary periods typically last between three to six months and can be extended with the employee’s consent at the end of the term. For example, if the employee was sick and the business could not assess their performance adequately, it may want to extend the period.
Before you hire an employee, speak to our employment lawyer, Karen Cole, today.
Note: This article is not legal advice; it provides information of general interest about current legal issues.