- Can I specify a minimum number of years' experience or an age limit in job advertisements?
- Can we employ a foreign national who is subject to immigration control?
- Can I advertise for a replacement for a dismissed employee even though that employee is appealing against the dismissal?
- Can I ask about a candidate’s health before I decide whether to interview him/her?
- We advertised for a full time assistant. The best candidate informed us during the interview that she wanted to work part time. What should we do?
- Do we have to advertise every job vacancy that arises?
- Can we reject an applicant applying for a maternity leave cover role on the basis that the applicant is herself pregnant and will not be able to work for the full cover period?
Can I specify a minimum number of years' experience or an age limit in job advertisements?
In most cases – no! We would not recommend that you specify an age range or number of years’ experience in a job advert as this may expose your business to a claim of age discrimination.
Instead, you should focus on the skills and qualities required to undertake the role and use neutral language to describe these. Ask yourself whether it is really necessary for a candidate to have a certain number of years’ experience, and if so, why? Could it be, for example, that what you really need is someone who is able to work independently with minimum support, to liaise with senior individuals and to supervise and mentor others? If so – say so in the advert, rather than referring to a number of years’ experience.
Many job applications ask candidates to demonstrate that they have particular qualifications. Whilst this may be essential for some positions (for example, you would expect a doctor or teacher to have appropriate professional qualifications), the number and type of qualifications required for other posts may be less obvious. It is sensible when asking for qualifications to make it clear that you will also consider candidates with “equivalent levels of skill or knowledge” to avoid disadvantaging candidates (such as older candidates or ones of different nationalities) who may not otherwise be able to meet this criteria.
For example, if you need candidates to have a certain number of GSCEs, add the words “or equivalent qualifications” to avoid candidates (who are older and took ‘O’ levels, or who went to school abroad) not applying for the post.
You can minimise your risk of discrimination claims by asking yourself the following questions before writing the job advert:-
- Why am I including a specific requirement in this advertisement? What am I trying to achieve by doing so?
- Is there another way that I could achieve that aim which would not disadvantage people from a particular group or with a protected characteristic?
Whatever else you do, avoid any language that could be interpreted as age specific. For example, an advert seeking “mature” candidates may exclude younger candidates. Similarly, asking for an “active and energetic” or a “recent graduate” may exclude older candidates.
Can we employ a foreign national who is subject to immigration control?
You might be able to but only if he or she has leave to enter or remain in the UK and is not prevented from working. This information may be provided on the individual’s visa. If you have any doubts or the individual can’t show you their documents, it is best to take advice and/or use the checking service provided by the Home Office. The checking service is free but you will need to get the individual’s permission to use it. You will also need their full name, date of birth, nationality, job title, proposed number of hours of work per week, their home address and the Home Office’s reference number if they have one.
All employers have a duty to prevent illegal working and are required to undertake pre-employment immigration checks on all staff they wish to employ (either as an employee or as a worker) to ensure that they have the right to work in the UK. It is a criminal offence to employ someone who does not have the right to work here.
Any offers of employment that you make should be conditional upon the individual having the right to work in the UK.
Before a candidate starts working for you, you must ask him/her to provide you with certain original documents to prove that s/he has the legal right to work here. The Home Office provides advice about what documents you can accept and how to check that they are valid. You must satisfy yourself that the individual is the person named in them and also check any photographs or dates of birth given. You must take copies of the documents and retain these on file.
Provided you undertake these checks you should be able to rely on what is known as the “statutory defence” if it is later discovered that the individual did not have the right to work in the UK.
If you employ someone who does not have the right to work in the UK and have not undertaken these checks, you are liable to pay substantial fines of up to £20,000 per illegal worker and may also face separate criminal proceedings and unlimited fines if you knowingly employ an illegal worker.
Can I advertise for a replacement for a dismissed employee even though that employee is appealing against the dismissal?
Yes but you are increasing your risk of a tribunal claim if you do so. It is generally better to wait until the appeal decision has been made before advertising – if you can. Otherwise it will be argued that the appeal outcome has been predetermined and that the appeal is a sham or rubber stamping exercise. This could make it very difficult to defend an unfair dismissal claim – although this will normally only be an issue if the employee who has been dismissed has two years’ service or more. You would need convincing evidence to persuade a tribunal that, notwithstanding the advert, the appeal process was genuine and that the appeal hearer could have overturned the decision to dismiss.
There may also be other difficulties. If the appeal results in the employee being reinstated, for example, and you have already recruited to the post, you will have to give the old employee their job back. You will then have to decide what to do with the person you recently appointed. If they have not already started work, you may be able to withdraw the job offer, but will usually have to provide him/her with adequate notice otherwise you may face a separate breach of contract claim.
From a legal perspective, it is much better to deal with any appeal without delay before advertising the post. There may however be other business or commercial considerations which mean that the need to recruit quickly outweighs the legal risk of doing so.
Can I ask about a candidate’s health before I decide whether to interview him/her?
Not usually. There are very limited circumstances in which an employer can ask about the health of job applicants before making a job offer. You can however ask questions 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/or to find out if the applicant will be able to carry out a function that is intrinsic to the work concerned.
This means that employers should not ask applicants to complete medical questionnaires at an early stage of the recruitment process – and should certainly not be asking occupational health professionals to get involved in assessing an employee’s health or fitness until a job offer has been made.
You can ask health questions once you have made a job offer, but you must take care not to discriminate against an individual once you receive the answers to those questions. You should also make sure that the questions you ask are relevant to the job, which means that you may have to tailor your questionnaire rather than rely on a generic version.
We advertised for a full time assistant. The best candidate informed us during the interview that she wanted to work part time. What should we do?
If you have already decided that the candidate is the best person for the job, we recommend that you discuss with her what work pattern she is looking for as “part time” can encompass a range of different working arrangements. Once you have this information, you should consider whether you can accommodate the request. It is best to start from the point of looking at how you can make this work rather than assuming that it would not. For example, if the work required does need someone working over a 5 day period, can you recruit someone else so that they can job share? If so, it is perfectly acceptable to advise the candidate that you will try and find someone else to work the rest of the week.
If you conclude that the job genuinely does need the same person on a full time basis you may be able to turn down this person’s application on the basis that the job needs to be performed on a full time basis. Be aware however that doing so places you at risk of a discrimination claim (most likely an indirect sex discrimination claim) and that these days it is increasingly difficult to persuade tribunals that any job has to be done full time by the same person.
If you are considering rejecting the candidate, make sure you have your potential defence to a claim by establishing:-
1 – Why the job needs to be done on a full time basis – in legal speak ‘what is the legitimate business aim you are trying to achieve’
2 – Whether there is any other way you could achieve that aim which would have less of an impact on women.
You may be challenged about this so it is sensible to record your reasons and provide concrete examples to support your contention. Always consider a trial period of the working hours requested by the candidate – you never know, it might work, and if it doesn’t you’ve gathered more evidence to defend a claim!
Do we have to externally advertise every job vacancy that arises?
No. In most cases however it is sensible to do so to ensure that your organisation receives applications from a wide range of individuals. The problem with recruiting internally or from friends, family or other contacts is that you may, albeit inadvertently, restrict the number of candidates. You will be ‘fishing from a smaller pool’ which could also lead to allegations of discrimination. For example, if your workforce is mainly comprised of white men, using world of mouth to recruit may perpetuate the existing imbalance and restrict your choice of candidates. It is possible that an otherwise suitable female or BAME candidate who does not hear about the job until after it has been filled, might claim that the recruitment method indirectly discriminated against them. Whilst the risk of this may be small it is worth balancing this against the convenience of more informal system of recruitment.
Many organisations, particularly in the public sector, have a policy of always advertising externally as part of their equal opportunities and diversity policies.
There are, however, some circumstances in which you would not advertise externally to fill existing vacancies. For example, if you are making redundancies anyone who you have put at risk should be considered for and (unless there are very good reasons not to) offered any suitable alternative roles ahead of any external candidates. If you don’t do this, and the employee has at least 2 years’ service, he/she may bring a claim of unfair dismissal against you.
Can we reject an applicant applying for a maternity leave cover role on the basis that the applicant is herself pregnant and will not be able to work for the full cover period?
No, an employer cannot reject an applicant for a maternity leave cover role on the basis that the applicant is herself pregnant. If you do so, this will amount to unlawful pregnancy and maternity discrimination.
In addition, there is European case law that makes it clear that failing to recruit a woman on the grounds of pregnancy, even if the contract is for a fixed term only and she will not be able to work the full period, constitutes unlawful sex discrimination and cannot be justified.
Published: 11 September 2017
Employment Law Update - September 2017
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