Recruitment risks
The problem
A hotel proprietor wants to recruit about 50 staff - likely to include foreign nationals - to work in a new hotel. He is concerned about exposure to potential claims for discrimination and other legal risks that may be involved.
The law
Discrimination on grounds of sex, race or disability is prohibited by law throughout the recruitment process. This includes advertising a position, interviewing and selection arrangements and the actual offer or refusal of a job.
The Asylum and Immigration Act 1996 makes it a criminal offence to employ a person who does not have permission to work in the UK, but employers have a defence if they made appropriate checks before recruiting the individual. This involves seeing and copying one of a range of documents verifying his or her status (eg, passport or birth certificate).
Expert advice
The proprietor needs to be careful to follow non-discriminatory recruitment practices. In drafting job advertisements he should avoid giving any impression that applicants should be of one particular race or sex and not include anything that might give rise to a suspicion of discrimination on grounds of disability.
Job interviews are a potential minefield for employers. Great care should be taken to avoid asking questions from which discrimination might be inferred. Application forms and interview questions should therefore relate closely to the requirements of the job. Questions about marriage or family plans, for example, should be avoided because they might be construed as showing an anti-female bias.
On the other hand, "personal" questions about a job applicant's family commitments are not automatically out of bounds and may be relevant if, for example, the job requires unsocial hours. But it is important to ask both male and female applicants the same questions.
Selection should be in accordance with specific criteria that are applied to all applicants. The more subjective the selection procedure, the more likely an employment tribunal will infer unlawful discrimination.
Where an applicant is disabled, the employer has a duty to make adjustments to the interview arrangements where necessary (eg, wheelchair access, sign-language interpreter). In addition, the selection process must take account of any adjustments to the job that would reasonably have to be made on account of the disability, and the applicant's merits must be assessed as if such adjustments were in place.
The proprietor will also need to check, before any new recruits start work, that they are in possession of at least one of the required documents verifying their right to work in the UK. In order to avoid race discrimination claims, all applicants should be checked and not just those who look or sound "foreign".
Finally, the proprietor should keep records of each stage, carefully noting the reasons for any decisions. Without a "paper trail" documenting the basis on which selections were made, he will find it more difficult to defend a discrimination claim if one is brought.
Check list
Ensure that job advertisements and interview questions are focused on work requirements.
Set objective selection criteria and apply them uniformly to all applicants.
Make special arrangements to cater for disabled applicants as appropriate.
Check that potential employees are in possession of at least one of the required documents verifying their immigration status.
Keep proper documentation of the recruitment exercise, detailing how the various candidates matched up to the selection criteria.
Contacts
Lewis Silkin
020 7074 8000
sean.dempsey@lewissilkin.com
Employment Law and Industrial Relations Helpline 020 7396 5100
