Attracting and selecting the candidate
Question 1: I am recruiting a sales person and want to appoint someone young and energetic? Can I specify an age range for applicants in the job advertisement?
Setting an age limit for applicants is likely to constitute direct age discrimination. Using words such as ‘young’, ‘energetic’, ‘senior’ or ‘mature’ which imply that you would prefer someone of a certain age will also be discriminatory. To avoid claims of discrimination, use the skills and competencies necessary for the job as the criteria for selecting the best applicant, regardless of age.
Question 2: I am interviewing for the post of Office Supervisor. The previous post holder, a woman, was always taking time off when her childcare arrangements broke down. I don’t want to have the same problem again. Is it OK for me to ask female applicants whether they have made proper provision for childcare?
A female applicant who is asked questions about childcare arrangements might well assume that the interviewer was making assumptions about her ability to do the job and claim that she has been discriminated against on the grounds of her sex. An interviewer is entitled to ask questions about whether an applicant can meet the demands of the job but this should be done in a gender neutral way. All applicants, male and female, should be asked the same questions. Questions must be reasonable, non-intrusive and relevant to the job. For example, it would be irrelevant and might be discriminatory to ask applicants about mobility if the Supervisor’s job is wholly office based.
Question 3: We are currently using the services of an agency temp. He has proved to be an excellent worker and we would like to recruit him as a permanent employee. Do we have to pay a fee to the agency?
Under the Conduct of Employment Agencies and Employment Businesses Regulations 2003, an agency may charge a client a “temp to perm” fee provided:
- the client is given, as an alternative to paying the transfer fee, the option to hire the temp, on no less favourable terms, for an extended period and
- the transfer takes place within either 14 weeks of the start of the temporary assignment or within 8 weeks of the end of the assignment, whichever period ends later. The fee must be clearly set out in the agency’s agreement with the client.
Question 4: Our application form asks for the applicant’s date of birth. Is this unlawful? Should we remove the question?
Under the Employment Equality (Age) Regulations 2006, it is unlawful to discriminate against applicants for employment on the grounds of age. This applies to all stages of the recruitment process. If an unsuccessful applicant considers that the recruitment process was discriminatory, he/she can bring a claim of discrimination before an Employment Tribunal. It is not unlawful to ask the applicant to provide details of his/her age on an application form. However, to do so may give rise to a claim of age discrimination from an unsuccessful applicant. It would therefore be advisable to remove the question.
Question 5: What arrangements might we be required to make to assist disabled applicants at the interview stage of the recruitment process?
Under the Disability Discrimination Act, employers have a duty to make reasonable adjustments to remove any substantial disadvantages faced by a disabled person. This applies to all stages of the recruitment process, including the interview stage. It is best practice to give applicants the opportunity to indicate any relevant effects of a disability before the interview and ask them to suggest adjustments, which would help to overcome any disadvantage. For example, if you discover that an applicant is a wheelchair user and the room chosen for the interview would be inaccessible, a reasonable adjustment would be to hold the interview in an alternative, accessible room. An applicant with a hearing impairment may need the interviewer to speak clearly and be prepared to repeat questions so that he/she can lip-read. Alternatively, the applicant may need help from a sign interpreter. You may need to allow a disabled person extra time for the interview or to complete relevant selection tests.
Question 6: I am about to conduct a series of employment interviews. Can I ask the applicants if they have any disabilities?
The Disability Discrimination Act does not prohibit you from seeking information about a disability but you must not use it to discriminate against a disabled person. You should ask only about a disability if it is, or may be, relevant to the person’s ability to do the job - after a reasonable adjustment, if necessary. Asking about the effects of a disability might be important in deciding what adjustments ought to be made. You should always avoid discriminatory questions.
Question 7: Can I refuse to employ a pregnant applicant?
No. Such a refusal will be direct sex discrimination and you will risk an Employment Tribunal claim. You must disregard the pregnancy and make your selection decision objectively on merit.
Question 8: When is it appropriate to ask about a job applicant’s criminal record?
In general, you should only ask about a person’s criminal record if it would be relevant to the job he/she is applying to do. Under the Rehabilitation of Offenders Act, some criminal convictions are regarded as “spent” after a specified period of time. You should not ask about spent convictions unless the job in question is one of the excluded jobs and professions listed in the Act.
Question 9: Can I refuse to employ someone with a spent conviction?
Only if the job for which the person is applying is excluded under the Rehabilitation of Offenders Act.
Offering the job
Question 10: Having made an offer of employment, I have received a poor reference on my prospective new employee. Can I withdraw the offer?
If the employee has accepted an unconditional offer of employment, there is a legally binding contract between you and you will be in breach of the contract if you withdraw the offer. To compensate for the breach, you would have to make a payment to cover the notice period required under the contract. If the offer was conditional on your receiving satisfactory references, there will be no enforceable contract until the condition is fulfilled, so the offer can be withdrawn. It is always best practice to make an offer of employment subject to satisfactory references.
Question 11: Do I have to give my employees a written contract of employment?
A contract of employment is formed as soon as an employer’s offer of employment is accepted by the applicant. It can be written or verbal. There is no legal requirement for you to provide a written contract of employment. However, under the Employment Rights Act 1996, employers must provide a written statement of particulars of employment to employees, whose employment is to last for 1 month or more, within 2 months of the employee starting work. The written statement must set out the main terms and conditions of employment, as listed under the Act. It must be issued regardless of the number of hours the new employee is required to work.
Question 12: My Company’s standard contract of employment includes a probationary period. Can I withhold any rights or benefits for employees during this period? Statutory employment rights, such as the right to statutory holidays and statutory notice periods, start to accrue on the first day of employment. Any clause in the contract which attempts to override an employee’s statutory rights during a probationary period will be null and void. Any contractual benefits, which are over and above an employee’s statutory entitlement, can be withheld until the employee has completed a satisfactory probationary period, provided the contract states this clearly and unambiguously. Question 13: Can an unsuccessful job applicant bring a discrimination claim against a prospective employer? Yes. If an applicant for employment considers that the selection procedure was discriminatory, he/she can bring a claim of discrimination before an Employment Tribunal. It is therefore vital that an employer’s selection criteria can be objectively justified in relation to the requirements of the job and that selection tests and interview questions do not discriminate on the grounds of sex, race, disability, age, sexual orientation, religion or belief. Question 14: How do I check whether a prospective employee has the right to work in Cyprus? It is an offence to employ someone who does not have permission to work in the Cyprus. To establish a statutory excuse against liability for negligently employing an illegal worker, you must check and make a copy of certain original documents in respect of every new employee, before they begin their employment. The statutory excuse is not available if you were aware at any time during the worker’s employment that the employment was not allowed. The documents or combinations of documents to be checked and copied, which provide a statutory excuse against liability, are specified by legislation and set out in 2 lists, List A and List B . The documents or combinations of documents in List A show that there are no time restrictions on the person’s ability to take up employment in Cyprus. The documents or combinations of documents in List B show that there are restrictions on the length of time the person is allowed to stay in Cyprus. Where a migrant worker’s immigration status is found to be time-limited, in order to retain a statutory excuse against liability, you must check the worker’s ongoing entitlement to work in the UK at least once every 12 months after the initial check. Lists A and B can be found in the Offering the Job topic. Be careful to avoid racial discrimination when checking new employees’ documentation. Checking the documents of only those who look or sound foreign is likely to constitute unlawful discrimination. Do not treat applicants differently if they produce documents from List B rather than List A. The best way to avoid racial discrimination is to treat all prospective employees in the same way and only ask for a document or combination of documents from the person who is to be offered the position. Question 15: We have made an offer of employment to someone who has to give 6 months’ notice to her current employer. We would like her to start sooner than this. Should we encourage her to leave before her notice period expires? Leaving her employment without working out her contractual period of notice will be a breach of contract. Her employer could make a claim for damages against her. You could also be included in the claim if you knowingly encouraged her to give short notice. In practice this is most likely to happen where the employee’s sudden departure damages the employer’s business (for example, a lost contract) and causes a quantifiable financial loss. Even where the employer decides to take no legal action, the employee’s integrity will be brought into question and this may have implications for future references given by the employer. It is better for all concerned if the employee discusses the situation with her employer and tries to agree an earlier leaving date. Users should note, however, that the information is intended as a general guide only and as such may not be suitable for the use you intend. There may be facts that have a significant and disproportionate effect on your legal position but are not addressed by guidance which may need to be amended or supplemented by legal advice. The guidance contained in this document is based on the law of England, Wales, Scotland and Northern Ireland at 29thSeptember 2008. Users should note, however, that the information is intended as a general guide only and as such may not be suitable for the use you intend. There may be facts that have a significant and disproportionate effect on your legal position but are not addressed by guidance which may need to be amended or supplemented by legal advice.