In the UK, there are several pieces of legislation which govern the employment lifecycle, including the recruitment and selection process. To minimise the risk of falling foul of the law, employers, and those responsible for recruiting on the employer’s behalf, must fully understand the legal implications when hiring someone new.
In this guide, we set out the different aspects of recruitment law in the UK which employers must be aware of, from avoiding unlawful discrimination to complying with the rules around data protection.
Writing job descriptions
While it is for employers to decide how they recruit for their organisation, even where there are no set procedures that are strictly required by law when it comes to hiring someone new, employers must still follow a fair process. This means that even during the pre-recruitment stage, when an employer is deciding on a job description, the employer must ensure that their recruitment practices do not discriminate against prospective applicants.
Under the Equality Act 2010, allegations of discrimination can arise at any stage during the recruitment process, from the way in which a job role is described to how the employer goes about selecting the successful candidate. This is because the protection afforded under the 2010 Act to a person not to be unlawfully discriminated against by reason of a protected characteristic extends to job applicants, as well as existing members of staff. These characteristics include age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
To avoid treating job applicants unlawfully in the arrangements made for deciding who should be offered employment, the starting point is to write a job description and person specification that is non-discriminatory. This obviously means that the job role must not directly exclude certain categories of people because they possess a protected characteristic, for example, anyone who is pregnant or disabled. Equally, care must be taken not to indirectly discriminate against applicants by using phrases like ‘highly experienced’ or ‘recent graduates’, both of which could potentially discriminate by reason of someone’s age.
Even prior to employing someone, an employer could easily find themselves defending a claim for unlawful discrimination before the employment tribunal, where there is no cap on the amount of damages that can be awarded for this type of claim. Any allegations of discrimination are also likely to have a significant and costly impact on the employer-brand.
Advertising job roles
When taking steps not to discriminate against job applicants in the arrangements made for deciding who should be offered employment, in addition to writing a non-discriminatory job advert, these steps should also extend to the way in which a job role is advertised.
It is a good idea to advertise using at least two different channels to help reach a wider range of people and reduce the risk of discrimination. The employer or those responsible for recruiting should consider whether the places the role is advertised will reach a diverse range of people and create a wide pool of candidates. For example, if the employer only advertises in a single and specialised publication, they are likely to miss out on applicants who do not buy that publication. Equally, if they choose to advertise using only an internet job board, they will miss out on applicants who do not frequent this online platform.
In some cases, the employer may even want to take positive action to help improve work opportunities for people who share a protected characteristic and to increase participation in their workforce where this is disproportionately low. Under the 2010 Act, positive action, unlike positive discrimination, is not unlawful. This can be used to help people overcome certain barriers and improve representation in the employer’s workforce. For example, an employer might want to include placing a job advertisement in a magazine with a largely gay and lesbian readership, as well as placing it in a national newspaper. This is not unlawful, but is instead a legitimate way of encouraging applications from under-represented groups, while using other forms of media to advertise the job more generally.
Targeted advertising can also be used in job descriptions to encourage those from disadvantaged groups to apply, for example, by stating that the employer welcomes applications from male candidates at a nursery where the workforce is 90% female.
Screening and selecting candidates
When it comes to the screening and selection part of the recruitment process, this again must not be discriminatory, for example, a female candidate with equal skills, ability and experience as her male counterpart should not be rejected because she has childcare commitments. To avoid inadvertently discriminating, it is therefore always best to follow a clear and objective selection process, both when shortlisting candidates and making a final selection following interview, to ensure that any approach is fair and inclusive.
It is also important that the employer or anyone responsible for conducting the interview part of the recruitment process does not ask any direct or indirectly discriminatory questions, for example, whether or not someone is married, or if they have or are planning children. It is also unlawful, except for the purposes of establishing whether a disabled applicant needs a reasonable adjustment to be made during the recruitment process, to ask about any disability or health issues until a person has been been offered a job. Disabled applicants must be assessed objectively for their ability to do the job role on offer.
The requirement to make reasonable adjustments is to ensure that disabled applicants are not substantially disadvantaged in comparison with non-disabled applicants where, under the Equality Act 2010, this requirement extends to minimising any adverse impact caused by a provision, criterion or practice, as well as any physical feature or lack of auxiliary aid. For example, the employer may need to provide a ramp, and/or to hold assessments days and interviews on the ground floor, to help facilitate access for wheelchair users.
It is also worth noting that the duty to make reasonable adjustments covers not only the way in which interviews and assessments are conducted, but extends to the way in which a vacancy is advertised and applications are accepted. For example, the employer may need to provide an advert in an accessible format for the blind, such as Braille or audio format.
Making job offers
Even once a candidate has been selected, the duty not to discriminate, as well as the duty to make reasonable adjustments in the workplace to remove any disadvantage that may be experienced by the successful candidate, remain a key consideration for the employer.
However, an additional and important matter that typically arises at this stage of the recruitment process is the terms and conditions upon which the employee will be recruited where, again, the employer must not discriminate in the terms on which they offer a job role. This means that, for example, an employer must not offer a female or younger candidate the lower of the advertised salary bracket by reason of their gender or age.
When deciding on the terms and conditions of employment, the employer must also factor in the statutory minimum requirements that an individual will be entitled to, including the right to be paid at least the national minimum wage (under the National Minimum Wage Act 1998) and to receive a minimum amount of paid annual leave (under the Working Time Regulations 1998). By virtue of the Employment Rights Act 1996, all employees also have the statutory right to a minimum period of notice on termination of their employment.
A new-starter can be provided with enhanced rights under their contract of employment, for example, where the employer agrees to provide more paid holiday and/or a lengthier period of notice, but the employee cannot be asked to accept to less than their statutory entitlement. In the absence of any contract in writing, the employer must also provide a written statement of employment particulars, including basic details such as working hours, pay and pay periods, holiday entitlement, together with any trial or probationary period.
In almost all cases, it is best for the employer to put in a place a comprehensive contract of employment, signed by both parties. In this way, the respective rights and responsibilities can be clearly set out in relation to all aspects of the employment relationship.
Onboarding
The final stage of the recruitment process, once the terms and conditions of employment have been agreed, is onboarding a new recruit. However, acceptance of any job offer must be conditional upon the new-starter having the legal right to work in the UK, where employers must carry out prescribed right to work checks on all new employees.
Under the illegal working regime in the UK (as legislated for under the Immigration, Asylum and Nationality Act 2006), all employers have a responsibility to prevent illegal working by ensuring that anyone hired by them is not prohibited from undertaking work in the UK, or from doing the work on offer, by reason of their immigration status. This means that the employer must conduct a right to work check and only onboard a new recruit if that individual is able to satisfactorily prove their entitlement to work in the UK.
However, as with the rest of the recruitment process, it is important for employers not to discriminate when conducting right to work checks. This means that employers must conduct these checks on all new-starters, regardless of their race, ethnicity or nationality. They must also not mandate how a new recruit proves their right to work, where the way in which a check can be conducted will depend on an individual’s nationality and in what format their immigration status is held. Some employees may have digital immigration status only, rather than a physical document, and vice versa.
Employers can conduct right to work checks either by using the services of an Identity Service Provider (IDSP), by using the Home Office online Right to Work Checking Service or by conducting a manual document check. IDSPs can only be used to verify the identity of British or Irish nationals, while an online check will be suitable for migrant workers whose immigration status is held in digit format, such as those with eVisas os status under the EU Settlement Scheme. However, if the new recruit is awaiting a decision on a recent immigration application, the employer may need to use the Employer Checking Service to request a positive verification notice before allowing their new recruit to start work.
In circumstances where an employer is found to be employing someone illegally and they have failed to conduct a prescribed right to work check, they could be liable to a civil penalty of up to £20,000 for each illegal worker. If the employer knew or could reasonably have known that the individual was prohibited from working in the UK, they could also be criminally prosecuted, punishable by up to 5 years’ imprisonment and/or an unlimited fine.
After recruitment
Given the recruitment and selection process as a whole will result in the employer collecting and using information about a potentially large pool of applicants, the provisions of the Data Protection Act 2018 will come into play here when it comes to processing that data.
The 2018 Act governs the lawful processing of personal data where employers must follow the rules around data protection throughout the entire recruitment process, including advertising, applications, verification, short-listing, interviews, pre-employment vetting and retention of recruitment records. Some of the key data protection considerations include:
- making job applicants aware of how the prospective employer will process their personal data and for how long that data will be retained by the organisation
- making clear on the application form if any information provided by an applicant will be used for any other purpose than to recruit for the job role in question
- seeking only personal information relevant to the recruitment decision to be made
- treating all applications confidentially and only circulating these applications to those responsible within the business for dealing with recruitment
- deciding what information will be retained for the successful candidate, where this should be limited to only that which is relevant to the ongoing employment relationship
- advising unsuccessful candidates in circumstances where any information will be retained about them, and for how long that information will be retained, providing these individuals with the opportunity to have that data removed from the employer’s files.
There are various different sanctions that could be imposed by the Information Commissioner’s Office for any breach of the data protection rules. These include receipt of a warning or reprimand; the imposition of a temporary or permanent ban on data processing; an order to rectify, restrict or erase data; not to mention the possibility of a hefty fine.
Need assistance?
For specialist advice on any aspect of recruitment laws in the UK, from hiring foreign nationals to avoiding unlawful discrimination, contact us.
Recruitment law FAQs
What laws play a role in recruitment?
There are different recruitment laws in the UK, including the right of job applicants not to be unlawfully discriminated against and the right of disabled applicants to have reasonable adjustments made to minimise any disadvantages when applying.
What are the legal controls on recruitment?
There are no strict legal requirements when recruiting, although employers must not unlawfully discriminate when advertising a role or selecting someone for that role. They must also comply with the rules relating to data protection and right to work checks.
What legislation covers recruitment and selection?
Different legislation can apply to the recruitment and selection process in the UK, including the provisions of the Equality Act 2010 which deals with unlawful discrimination and the Data Protection Act 2018 which deals with lawful processing of personal data.
Last updated: 3 March 2024
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
