With the start of the year often a time when recruitment may pick up, we’re starting 2022 looking at best practices for recruitment and selection. Good recruitment practices provide a first impression to candidates and the market about your employer brand and values, so it is important to get right.

There can be many considerations and stages to the recruitment process when hiring a new employee. The process may vary depending on the nature of your organisation but will typically consist of:

• Identifying a vacancy
• Writing the job description and preparing an employee specification
• Advertising and inviting applications
• Shortlisting and selection
• Making an offer of employment

We will cover what it means to be an equal opportunities employer in more detail in next month’s feature, but it’s important to highlight that job applicants are protected under our equality legislation against unlawful discrimination on grounds of sex, age, race, disability, sexual orientation, religious belief, political opinion, pregnancy/maternity status and marital/civil partnership status. This applies to all aspects of the recruitment process, from advertising and shortlisting to decisions on appointment.

Identifying a vacancy

You may decide to hire a new employee for a variety of reasons. Changes to your organisation and operations may mean you need new skills, or more employees if your business is growing. If someone leaves your organisation, you may wish to recruit someone new into the same role to replace them.

Writing the job description

Before advertising any vacancy, you should prepare a detailed written job description. Going through this process helps you determine what is really needed for your organisation. Doing this objectively before considering any candidates can also help document your approach and avoid future allegations of discrimination.

A job description should be clear and easy to read, and include details of the job title, main duties and responsibilities. The duties outlined should reflect the reality of the role and be a realistic reflection of what is involved day-to-day in terms of tasks, expected outcomes and level of responsibility.

A job description should include whether a role can be performed part-time, full-time or through a flexible arrangement. Specifying a particular work pattern, however, will need to be objectively justifiable as only considering a particular pattern could be seen as treating some individuals with protected characteristics (for example, gender) less favourably. A flexible approach will not only help you avoid discrimination claims but may widen the potential pool of talent you can recruit from.

Working with your HR team to regularly review job descriptions can help ensure they remain current, objective and free from any possible discriminatory bias.

Employee specification

An employee specification (or person specification) outlines the skills, qualifications or experience and abilities that are considered essential and/or desirable in a candidate to perform the role outlined in the job description.

Careful consideration must be taken to ensure criteria can be objectively justified for the particular role advertised. If not, there is a risk that they could be indirectly discriminatory. For example, specifying a minimum number of years’ experience could be indirectly discriminatory on grounds of age.

Criteria should not be overly restrictive or overstate the level of education or qualifications required. Including references to “equivalent qualifications” or “equivalent level of skill of knowledge” or “equivalent experience” is preferable where possible.

Advertising

When the vacancy, job description and person specification have been agreed, the role should be advertised.

You can choose to accept CVs or application forms. Application forms can help you standardise the information requested and may make it easier for you to compare applicants against the criteria you are looking for. A form can also ensure you are only asking for and receiving information that is relevant to the role and selection process.

In addition to the candidate application, registered employers are required to collect information on sex and community background via an equal opportunities monitoring form. This, and other fair employment considerations for employers to consider in advertising roles, will be covered in the next issue of this recruitment and selection series.

Data protection

By inviting applications, you are collecting personal data from applicants and a number of legal obligations under data protection legislation will therefore arise. Applicants should be made aware of how their information will be processed, stored and used, possibly by including a notification in the advertisement or application form. Employers need to consider if any data collected is special category data – for example, information on disability or medical history.

Selection

Choosing the best person for the job requires some form of shortlisting and selection process. Shortlisting to select which applicants will be invited to come for interview and/or assessment should be based on the essential criteria you outlined in the employee specification. It is recommended that more than one person is involved in the process.

Depending on the role and/or number of applicants, you may have a defined stated process which could include some form of shortlisting matrix, testing or assessment, role play or situational interviews, and/or competency-based interviews.

The most important thing is that you take time to consider the process and apply it consistently and fairly. This does not, however, mean that your process is so rigid that you do not consider any reasonable adjustments that may be needed to your testing or interview arrangements for a disabled applicant, for example. You have a legal obligation to make adjustments to your process where you become aware of a possible disadvantage or situation where an adjustment may be needed.

Some testing could be considered indirectly discriminatory, if for example it was likely to advantage someone younger, or disadvantage someone with a disability (e.g. hearing or visual impairments, or dyslexia). In the employment appeal tribunal (EAT) case of Government Legal Services v Brookes UKEAT/0302/16, it was held that the requirement for an applicant with Asperger’s syndrome to take a multiple-choice test as part of a recruitment process amounted to indirect disability discrimination and failure to make reasonable adjustments under the Equality Act 2010.

Recruitment in redundancy context

Redundancy is a complex area for employers to navigate – the requirement to look for suitable alternative employment for at-risk employees can often be overlooked, leaving employers exposed to possible unfair dismissal claims where there were roles in the organisation that may have otherwise avoided the need to make a redundancy.

Questions as to whether particular vacancies can amount to a suitable alternative role in a redundancy scenario can often give rise to legal challenges. What is of most importance first and foremost is transparency as to the available vacancies in the company at the time of a redundancy exercise, so employees can at least consider the options and make enquiries about the suitability of particular roles. Employers should take care to avoid posting roles externally during an ongoing redundancy process if there is a possibility that the roles could be filled by an existing employee whose role is at risk.

Salary considerations

When setting the starting salary for a new hire you should apply a consistent and fair approach. Considering salary structure, ranges and banding within your organisation is advisable. New positions should be benchmarked to equivalent roles.

Equality considerations, such as avoiding potentially discriminatory pay practices, are important here. We will consider this in in the context of equal pay challenges in next month’s issue.

Part-time salaries should be set applying a pro-rata principle, whereby the employee is paid proportionally for the hours they work versus a full-time equivalent employee.

It also goes without saying that national minimum wage legislation must be adhered to in setting a salary for employees. Employers should be mindful of common pitfalls in this area, including in circumstances where employees may have to supply part of their uniform, the costs of which when deducted could bring an employee below the minimum wage threshold.

Making an offer of employment

Once your selection process has concluded, you will want to make an offer of employment to your chosen candidate.

Extreme caution should be taken before making any absolute or unconditional offer of employment. If such an offer is accepted, there is arguably a legally binding contract in place and any withdrawal of the offer could therefore amount to breach of contract.

If checks on references, criminal record or qualifications etc. need to be carried out, any offer of employment should be made on a conditional basis. When making an offer, these conditions will need to be clearly laid out to the candidate as well as any time limit on satisfying the conditions and confirming acceptance. Even a verbal communication of an offer should make conditions clear and ideally be followed up with written confirmation.

An offer letter should typically include the job title, location (or details of any remote/hybrid arrangements), key terms of employment, and enclose a statement or employment particulars or employment contract for consideration and acceptance. Under article 33 of the Employment Rights (Northern Ireland) Order 1996, employers must provide a statement of initial employment particulars no later than two months after employment commences. In Great Britain, recent legislative amendments mean that the initial statement of particulars must now be provided on day one, and this extends to workers and employees.

It is advisable to make clear that the offer supersedes any previous discussions about the role and that where there is any discrepancy between the offer letter and the contract of employment, the contract will prevail.

Conclusion

Overall, recruitment and selection require careful consideration and a fair and consistent approach. Investing in training and taking the time to carefully review recruitment processes before you begin will provide for a more streamlined process, and ensure that appropriate marketing of the vacancy ultimately finds you the best candidate(s) for your organi