Employment rights are a factor at all stages of the employment relationship, including the recruitment stage. Joanne Twiss looks at some key issues those involved in recruitment should bear in mind.
Most employers will be aware that after one year’s continuous service, an employee has the right not to be unfairly dismissed. The potential consequence of an unfair dismissal is defending a claim at an employment tribunal, with the attendant risks of payments to the employee and legal costs that generally cannot be recovered. However, what many employers do not appreciate is that employees may have claims long before they reach the magic “one year” service and in some cases before they even get through the door.
Discrimination legislation can apply to all aspects of the employment relationship from the recruitment stage through to the post employment stage, for example, the process of giving references. This means that during the employment relationship, from before it begins and until after it terminates, employers must not discriminate on the grounds of sex, marital status, race, disability, sexual orientation or religion or belief, these last two grounds having been added at the beginning of December 2003. When recruiting potential employees, employers must avoid direct discrimination on these grounds and also indirect discrimination.
Direct and indirect discrimination
An example of direct discrimination would be advertising for only one sex to carry out a role and excluding the other sex on grounds that a specific gender was not a genuine occupational requirement. Failing to employ someone because they are pregnant is an example of direct discrimination, unless it can be shown that it is a genuine occupational requirement to not be pregnant. This is something we successfully managed to argue where our clients were recruiting for the role of a ‘Virginal Maiden’ in a production, and one of the potential candidates was pregnant and would have been seven to eight months pregnant by the time the production came to be performed. We argued that casting a heavily pregnant artist as a virginal maid would have compromised the authenticity of the production and that therefore it was a genuine occupational requirement for the role that the successful candidate was not pregnant. However this is an argument of limited application and generally it will not be acceptable to refuse to employ someone because they are pregnant.
Slightly more complicated are issues of indirect discrimination which can take a variety of forms. An example would be advertising for single people. This is not only discrimination on the grounds of marital status but could also be indirect sex discrimination on the basis that more women than men might be affected by this proviso. Further examples would be advertising a job in a car magazine mainly read by men so that many female candidates are excluded from even applying for the role; requiring GCSE English when the role only calls for somebody to be able to communicate, which could potentially be indirect discrimination against people from different cultures and/or races and failing to have wheelchair access at the place where interviews are being conducted which could prevent some disabled applicants from being interviewed.
Practical suggestions
Advertising jobs in such a way as to encourage applications from all suitable candidates regardless of their sex, race, religion, orientation or any disabilities is the first step in being alive to issues of discrimination. Further steps could include training the staff who deal with recruitment in anti-discrimination legislation and also ensuring that applications are processed in exactly the same way. Interview questions should relate to the requirements of the job. Therefore, questions about marriage or family should generally be avoided. If the job involves unsociable hours or extensive travel, these requirements should be discussed objectively without detailed questions based on assumptions about marital status, children and domestic obligations. Avoid making assumptions based on stereotypes.
Data Protection
In addition to these considerations, employers should also have regard to Data Protection principles and in particular the Code of Practice (Part 1) on Recruitment and Selection, published by the Information Commissioner. The Code gives guidance to employers on best practice for complying with the Data Protection Act in the context of recruitment and selection. Broadly speaking, the Data Protection Act requires employers to “process” “personal data” in accordance with the Act. In the context of the employment relationship, information is typically “processed” by the employer storing information about employees on file either electronically or on paper. What many employers do not appreciate is that they are also processing personal information when they collect, for example, CVs. The Code gives guidance as to how such information should be dealt with during the recruitment process including its ultimate disposal. Among its recommendations is the identification of a person within the organisation with responsibility for collecting data in accordance with the Data Protection Act and ensuring that information requested on job application forms is not excessive, irrelevant or inadequate. Other recommendations include the careful disposal of any documentation containing personal data, advising applicants of any checks that may be carried out to verify data and careful consideration of how long candidate information is retained.
Probation
Another consideration when recruiting people is to make the employment subject to a probation period and for that period to be included in the contract of employment. This gives both parties a specific time frame upon which to focus. Generally, an appropriate period of probation is three to six months. The employer should have a reminder system when the probation period is drawing to a close so that if the employer feels the employee’s performance or conduct has been unsatisfactory it can either extend the probation period or consider termination. Remember that if the employee has one year’s continuous service then, even if the whole year has been subject to probation, the employee will have the right not to be unfairly dismissed.
Fixed term?
A common employment difficulty for arts organisations is the thorny issue of the fixed term contract and whether to engage an employee on a fixed term basis. Fixed term contracts can be a useful way of focusing minds as to how long the relationship should last and are also helpful from a psychological point of view. However, if the fixed term contract is for a year or more then the individual may have a claim for unfair dismissal if the employer cannot justify the ending of the contract for a reason other than simply the expiry of time. Furthermore, employees working under fixed term contracts have the right to be treated no less favourably than their permanent counterparts. This means that if a comparable permanent employee is entitled to certain benefits then those benefits should also be made available to the fixed term employee unless the employer can objectively justify why not.
The employment relationship begins at the recruitment stage so the advice is to start as you mean to go on.
Joanne Twiss is a Senior Associate in the employment group at Harbottle and Lewis with particular expertise in tribunal and court claims
t: 020 7667 5248;
e: joanne.twiss@harbottle.com