This edition’s FAQ’s address some of the tricky issues that can arise during recruitment.
Can we specify a minimum number of years’ experience in the job specification?
Can we advertise for a role which has become vacant because we dismissed the job holder if there’s an on-going appeal against the dismissal?
Can we ask a potential job applicant for information about their health?
Do we have to advertise externally?
Can we specify that we need a full time employee? What should we do if the candidate says that s/he wants to work part time?
We need to recruit to provide cover for a member of staff on maternity leave. Can we reject a candidate who is pregnant and will not be able to provide cover for the whole period?
Q1 Can we specify a minimum number of years’ experience in the job specification?
Yes, but only if the amount of experience you require is directly relevant to the job, you can justify the number of years specified and there is no other less discriminatory way of recruiting a suitable candidate. Before setting a minimum number of years’ experience ask yourself the question – is there another way in which a candidate could demonstrate their ability to do the job? For example, through an additional qualification or a practical / skills test in the recruitment process.
Setting out a minimum number of years’ experience exposes you to potential claims of age discrimination by younger candidates who are far less likely than older workers to have the relevant number of years of experience. A candidate can bring claims of age discrimination against a prospective employer even if they don’t apply for the job, because they have been put off from doing so because they cannot meet the minimum work experience requirement.
If you do include a minimum number of years’ experience in your specification, you must be able to justify why you have done so and demonstrate that the number of years you have selected is appropriate (for example, why five years is necessary and not three or four years). Even if you can jump through these hoops you will then have to show that you could not use a less discriminatory way of recruiting to the post. In most cases, this will be difficult, particularly as competency based criteria setting out type, breadth or level of experience needed for the particular job and the skills required to perform it will allow you to exclude unsuitable candidates. Remember, quantity (of time in role) doesn’t always mean quality! Most employers would choose quality over quantity every time.
Q2 Can we advertise a role which has become vacant because we dismissed the job holder if there’s an on-going appeal against the dismissal?
The simple answer to this is ‘yes, but it’s very risky to do so’ particularly in cases where the reason for the dismissal was redundancy. Recruiting to replace a redundant employee suggests that there wasn’t a genuine redundancy situation in the first place, and will make it almost impossible to defend an unfair dismissal claim if one is made.
If you have dismissed the employee for another reason (such as performance or misconduct), advertising before the appeal has been determined suggests that the appeal outcome is predetermined (i.e bound to fail) and could also render a dismissal unfair.
Jumping the gun on recruitment, may also lead to other complications. For example, if you have successfully recruited someone else, and the employee’s appeal is successful, you will have to reinstate them. You will then have to terminate the new employee’s employment on notice (or withdraw the job offer). This may expose you to claims for breach of contract.
The best solution in our view is to expedite the appeal and put the formal recruitment process on hold under the appeal has concluded. If time is of the essence in recruiting, you could start the preparatory work such as drawing up a job description, person specification and advert – to be used only if the appeal is unsuccessful – so that you are ‘good to go’ when the appeal outcome is known.
Q3 Can we ask a potential job applicant for information about their health?
Yes, but only for very limited reasons and carefully! General questions about health should be avoided or you are at high risk of a claim for disability discrimination.
Before making a job offer you should only ask questions about health for one of two reasons:-
To find out if any adjustments need to be made to the recruitment process, for example special access arrangements for an applicant to attend an interview; and
To find out if the applicant will be able to carry out a function that is intrinsic to the role (for example are they able to drive / carry heavy loads / walk certain distances if those are essential elements of the role).
Our advice is not to ask applicants to complete medical questionnaires at an early stage of the recruitment process. Ideally, occupational health professionals should only be asked to get involved in assessing an employee’s health or fitness once a job offer has been made.
Once the offer has been made, the purpose of any health assessment or questions should be to assess what adjustments need to be made to accommodate an individual’s disability, which means that you may have to tailor your questionnaire rather than rely on a generic version.
Q4 Do we have to advertise externally?
The starting point is ‘no’. It is generally up to the employer to decide whether or not to advertise posts externally. Many employers, particularly public authorities or quasi-public authorities do so to ensure they comply with specific equality duties and to reach as wide a pool of candidates as possible.
If you are undertaking a redundancy exercise be especially careful before advertising externally. To avoid successful unfair dismissal claims from staff that are being made redundant you need to be able to demonstrate that you’ve done all that you reasonably could to avoid the redundancy and find staff alternative jobs within the organisation. If you are recruiting externally at the same time it will be very hard to do this! If the advertised role is not suitable for those who are being made redundant (for example because you are making nursing staff redundant and recruiting for qualified accountants) then you may be OK. Consider, however, whether any of the redundant staff could be trained to do the role you are recruiting for.
Advertising a role that would otherwise be suitable for a member of staff being made redundant will expose the business to unfair dismissal claims, and, if they are on maternity, adoption or shared parental leave, to discrimination claims. This is because an individual on this type of family related leave is entitled to be offered any suitable alternative role if they are selected for redundancy in priority to anyone else, even if they are not the best candidate.
Q5 Can we specify that we need a full time employee? What should we do if the candidate says that they want to work part time?
You can specify that you need a full time employee if you can justify it but, as a general rule, it is best not to. If an otherwise suitable candidate tells you they can only do the role on a part-time basis you will have to consider this and, for example, investigate if the role can be undertaken as part of a job-share etc. Any refusal to allow part-time working will need to be justified.
This is because the requirement to work full time may indirectly discriminate against women, who are, in the main responsible for childcare responsibilities and are therefore less likely to be able to comply with a requirement to work full time. It could also indirectly discriminate against those with disabilities whose health makes it harder for them to work full time.
The best approach is to consider all applications on their merit, and if someone asks to work part-time ask them why and give careful consideration to their request.
You are perfectly entitled to refuse the request if you have legitimate reasons for requiring someone to work full time or you cannot recruit someone else to support the part-time employee. If challenged, you will need to justify the requirement to work full time. To do this, you will have to show that working full time is necessary to effectively perform the job, or is necessary for the efficient running of the business, and that there is no less discriminatory way of achieving this. Management preference or administrative convenience will be insufficient to justify a refusal to agree to part time working.
It is also worth remembering that if you would accommodate a request to work part time from a woman, but refuse a similar request made by a man, you will expose the business to a complaint of direct sex discrimination.
Q6 We need to recruit to provide cover for a member of staff on maternity leave. Can we reject a candidate who is pregnant and will not be able to provide cover for the whole period?
No. It is unlawful pregnancy and maternity discrimination to reject an applicant for a maternity leave cover role because she is also pregnant (and will therefore be entitled to take maternity leave). This is the case even if the contract is for a fixed term only and the replacement worker will not be able to work the full period.
Published: January 2017
Employment Law Update - January 2017
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