Are you sure that your job application process is legal?

10th June 2024

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by David Moulton, Senior Associate Solicitor

Attracting good new recruits to your business is important, but so is ensuring that your procedures for choosing them are fully compliant with legal requirements.  There are key basic rules around recruiting which have been in place for a number of years but also a more recent development which is worth noting in relation to the application process.

Most businesses now understand what they can and can’t do in relation to both job adverts and the follow up questions that they ask the candidates who apply.  For instance, asking about ‘protected characteristics’ is generally a ‘no’ – so no questions are allowed about age, marital status, ethnicity, religion, sexual orientation, pregnancy, children or plans to have them, gender reassignment, or disability, unless the intention is to use positive discrimination to recruit someone who is disabled.

Job adverts should reach a range of people, so ideally a role should be advertised in at least two places.  Phrases like ‘extensive experience’ or ‘recent graduate’ should only be used if they are an actual requirement of the job.

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Whereas traditionally job applicants were often asked to submit a CV with a covering letter, more and more employers are requiring people to complete digital application forms and create online profiles in order to do so. Issues around this were the subject of a recent Employment Appeal Tribunal case.

In AECOM v Mallon (2023), the Tribunal decided that the employer had an obligation to make adjustments to the way in which they required someone to apply for a role. This was because they had been made aware of a disability which would put him at a disadvantage if the application could only be made in the way they had originally specified. In this instance, Mr Mallon suffered from dyspraxia and had alerted the potential employer to the fact that this meant he would struggle to apply online and requested a telephone interview instead. There were some complications around him not answering emails but the bottom line was that the onus was on the recruiter once they had been made aware of his disability.

Following this case, it is important that anyone recruiting new employees considers their application process and ensures that they are on the lookout for requests from potential recruits to apply in a different way due to a diagnosed disability.

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Other aspects of recruitment which can trip employers up include remembering to obtain proof that applicants have the right to work in the UK – a fine of up to £20,000 could follow if you employ someone who is not eligible to do so.

It is of course not just the application process which needs to be legal and fair but also the interview process.  Interviewers should be aware of unconscious bias and ensure that all candidates are treated equally.

Recruitment is an essential part of business life but it is not without potential pitfalls.  If you need more detailed assistance with the legal aspects of it, please contact us on ELS@fraserdawbarns.com or call your nearest office:

 

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