Recruiting Staff – Recruitment and the law

When it comes to recruiting staff, it is important to know how to recruit fairly and effectively. Here, Jackie Elliman explains what fair recruitment means.

If you discriminate when recruiting, you limit your pool of potential employees and so you may miss the ideal candidate. If this is not incentive enough, the law says that someone who has never worked for you can take you to a tribunal if they believe that the reason they were not employed is because of their sex, race, disability, sexual orientation, religion or (from October) their age. So you must avoid both direct and indirect discrimination in your recruitment processes.

Spreading the word

When advertising you should try to spread your net as widely as possible and not rely on word of mouth. In the arts there is a tendency for people to use people they know on artistic grounds. Many companies already feel over-subscribed with unsolicited applications; however, quantity is not a guarantee of quality or diversity.

Advertising in the national and industry press is certainly useful but only attracts those already in the industry and can be supplemented with unpaid advertising. This includes using the local Jobcentre for admin jobs, taking advantage of Arts Council Englands free email service  ArtsJobs, or using specific job bulletins like the Equity Job Information Service.

Standard advertising should also be supplemented with targeted publications; for example, if your aim is to increase racial diversity you should use the ethnic press. Furthermore, job information must be accessible to disabled people. Ideally, packs should be available in Braille or on tape, but if this is not feasible, large-print packs and webpages can help many partially sighted people. Making job information accessible by email means those with a hearing impairment do not need to phone for information.

To avoid direct discrimination when drafting job adverts, do not specify age, gender, race, religion or sexual orientation. There are exceptions for performers: if a role is written for a man or woman you can advertise specifically; if a role is written for a person of a particular racial origin you can ask for this (but you must refer to s.5(2)(a) of the Race Relations Act 1976). There are a few other circumstances where age, gender, race, religion or sexual orientation may be a genuine occupational qualification, but you should always check before assuming that you can advertise in this way.

You should also watch out for indirect discrimination, which is less obvious. If you are filling a technical post and say that you need someone who is heavily built and strong this description will fit far more men than women, so will discriminate against women. Focus on the task, not the person doing it, and say that the job will, for example, require a lot of lifting. Avoid age discrimination by avoiding such phrases as young, friendly company, recent graduate, must have substantial experience, must be able to work evenings and weekends (this could discriminate against those with childcare responsibilities, generally in their mid 20s to mid 40s, and against women).

Selection

Some people recommend asking candidates to submit a photograph with the application. This can help avoid potentially discriminatory notes being made at interview (black, in wheelchair), however innocently. There is also a view, however, that this encourages discrimination and even recruitment based on the fact that a candidate looks as if they will fit in here.

One solution is to photograph only those shortlisted for interview and to photograph them on the day, when they arrive for the interview, so that no pre-judgments can be made. Digital cameras, of course, mean that such instant photography is simple and that there is a record of the date the pictures were taken  useful evidence that they were not seen inappropriately early in the selection process.

Monitoring applications is not compulsory, but it does enable you to find out if you are spreading your net widely enough and it can provide useful evidence if you are ever challenged that your recruitment practices are discriminatory. Enclose monitoring forms with application forms but keep them separate (or at least detachable) and anonymous to encourage applicants to complete them (and enable them to be stored without contravention of Data Protection law).

Interview questions should relate to the requirements of the job. If it is necessary to assess whether personal circumstances will affect performance of the job (for example, where it involves unsocial hours or extensive travel) this should be discussed objectively without questions about potentially discriminatory areas such as marital status, children or religious belief.

To ensure that you do not discriminate against disabled applicants, you must look at whether reasonable adjustments can be made to put all candidates on an even footing before they are interviewed. Think about whether you might be able to alter working hours, modify equipment, assign the disabled person to a different place of work or provide a reader or interpreter. If it is possible to make reasonable adjustment (the cost and effort should be proportionate to the benefit) the candidate should be considered along with the others, on their own merits.

The recruitment process is certain to involve sensitive personal data about applicants (address, previous salary information, health information, nationality, etc.), and Data Protection legislation says that this must be treated with care and respect. This means adverts and application forms must make it clear who will hold the information submitted. Do not use a PO Box address or simply invite candidates to turn up at a rehearsal room. If additional use is to be made of applications (for example, they will be passed on to another company or department) then adverts must say this. Only data relevant to the recruitment decision should be requested, so you avoid storing irrelevant personal data.

You must be sure that applicants are legally allowed to live and work in the UK. You should ask all applicants these questions, otherwise you may be perceived as discriminating on grounds of race. There is Home Office guidance on what documents you should ask to see as proof.

You must also not offer employment that involves contact with people under 18 or with vulnerable adults to anyone who has been banned from such work because of a criminal record. Appointments involving children or vulnerable adults should be conditional on the appointee providing a suitable criminal record disclosure. This requirement needs to be balanced against the Rehabilitation of Offenders Act 1974, which makes many convictions spent after a certain period; once a conviction is spent, the convicted person does not usually have to reveal or admit its existence. In most cases, an employer cannot refuse to employ someone, or dismiss them, on the basis of a spent conviction. Disclosures that reveal an applicants full criminal record must only be requested where justified by the nature of the job.

Jackie Elliman is Legal and Industrial Relations Manager at the Independent Theatre Council. Relevant ITC training on this subject includes: Ian Hornby on The recruitment interview: getting it right! (17 November) and Jackie Ellimans overview of employment law, Working with people (6 November).
w: http://www.itc-arts.org