Doing business in the UK: recruitment dos and don’ts

Posted: 27/04/2022

Setting up and growing your business in the UK is rewarding; however, it can bring legal compliance headaches. This article highlights 10 recruitment dos and don’ts, to avoid any difficulties when hiring staff in the UK.

The biggest potential recruitment problem is a discrimination claim. Discrimination is unlawful in the UK in relation to nine ‘protected characteristics’: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. An employer must not discriminate against or victimise:

• in the arrangements the employer makes for deciding to whom to offer employment;
• as to the terms on which the employer offers employment;
• by not offering employment; and
• by harassing a person who has applied for employment.

Unlike certain US labor laws, there are no small employer exemptions within UK equal opportunities laws. However, the UK does not have the complexity of compliance with both federal and state laws.

• DO - identify the vacancy

Decide the employment status of the individual to be hired. Is an employee, worker or self-employed contractor required? These categories do not have the same legal rights in the UK.  Would utilising the services of a professional employer organisation (PEO) be a better starting place?

Consider whether the job can be performed flexibly in say a home or hybrid (office/home) working model environment. The requirement for a job to be performed on a full-time basis can be challenged as being discriminatory by those who, for example, need to work flexibly.

• DO – consider remote working

A requirement to work remotely in another country, such as the US or Canada can pose numerous issues, from employment rights to tax and immigration issues. While the risks can be minimised by allowing short periods of working abroad, the need for remote working should be considered at an early stage in the recruitment process, in order to address any interview questions and seek local advice if needed.

• DO - prepare a job description and person specification

Before advertising the vacancy, prepare a detailed written job description and person specification. A person specification describes the skills, knowledge, abilities, qualifications, experience and qualities that a successful candidate should have. Those criteria must not be discriminatory. For example, a requirement for continuous experience could indirectly discriminate against women who have taken time out from work for reasons related to maternity or childcare, unless the requirement can be objectively justified.

This is similar to the general rule that US federal and state equal employment opportunities laws prohibit pre-employment inquiries that disproportionately screen out applicants based on their protected status, unless a bona fide occupational qualification justifies the questions.

• DON’T – rely too heavily on recommendations

Be alert to the practice of recruiting on the basis of recommendations made by existing staff, rather than through advertising, as this can lead to discrimination. Where a workforce is drawn largely from one racial group, this practice can lead to the continued exclusion of other racial groups. There is increasing evidence that the best performing companies are racially diverse.

• DO – use standard applications

We recommend the use of a ‘standardised process’, whether through use of an application form or using resumes, in order to make an objective assessment of an applicant's ability to do the job. This will enable applicants to compete on equal terms and assist the employer in demonstrating that it has assessed those applicants objectively. In the UK, resumes are often much longer than they are in the US.

• DO – hold a fair selection process

The selection process should be fair and consistent, and, as far as possible, arrangements for holding tests or interviews should not put any candidates at a disadvantage in connection with a protected characteristic - for example, where they fail to take account of cultural norms, or dates or times coincide with religious observance. To ensure consistency, the same staff should be responsible for selection decisions.

• DON’T – infringe on data subject rights during background checks

There are data protection implications when screening candidates by reviewing any publicly available social media profiles, such as those on LinkedIn or Facebook. Any searches of material in the public domain, such as news websites, will require the employer to explain the lawful basis and how the processing does not infringe on applicants' data subject rights. Screening rights in North America are not the same in the UK.

• DON’T – hold extended unpaid work trial periods

The UK government takes the view that, outside of very exceptional circumstances, an individual undertaking work in a trial lasting more than one day is likely to be entitled to the National Living Wage.

• DON’T – ask questions at an interview relating to protected characteristics

Avoid irrelevant questions at an interview that relate to protected characteristics. For example, questions about childcare arrangements, living arrangements, or plans to get married or have children heighten the risks of unsuccessful candidates pursuing discrimination claims.

• DO - make an offer of employment

Once the successful candidate has been identified, best practice is to make an offer of employment in writing. In doing so, address the following matters:

• The job title of the job that is being offered, any particular features of the job, and the starting salary.
• Where the job will be based, including whether the job will be subject to remote working arrangements.
• The main terms of employment.
• Any conditions to which the offer is subject, for example, receipt of satisfactory references and proof of the right to work in the UK.
• Any time scale within which conditions need to be satisfied to confirm acceptance of the offer.

Whilst most employment in the US is carried out on an ‘at-will’ basis, more formal contracts, with notice periods, are required in the UK, not just for some senior positions as in the US.

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