Recruitment – legal requirements

There is no one piece of legislation setting out the legal requirements of the recruitment process. However, there are several legal requirements which employers must comply with from advertising the job to making an offer to the successful candidate.

Recruitment Agencies are subject to regulations

Before we look at individual employers, you should note that recruitment and employment agencies are subject to the Conduct of Employment Agencies and Employment Businesses Regulations 2003. These regulations are enforced by the Employment Agency Standards Inspectorate.

Businesses recruiting for themselves are not subject to these regulations. They are, however, subject to other legislation affecting the recruitment process.

Job adverts

The job advert must describe the role and requirements accurately. If candidates have been misled, they can claim under the Misrepresentation Act 1967.

Equality and non-discrimination

The job advert and interviews must be free from discrimination. Employers must use inclusive language. Under the Equality Act 2010, employers must ensure their recruitment process does not discriminate against applicants on the grounds of:

• Age
• Disability
• Gender reassignment
• Marriage or civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

In addition, the selection criteria must be relevant to the job and not disadvantage any group unfairly.

Right to work checks

An important aspect of the recruitment process is ensuring applicants have a right to work in the UK before the job is offered. This means asking for and checking the applicant’s documentation before they start work. The UK government has published a right to work checklist for employers. This lists the types of documents that employers should check.

The Immigration, Asylum and Nationality Act 2006 states that failure to check right to work can result in a civil penalty of up to £20,000 per illegal worker or criminal prosecution which can result in an unlimited fine and up to five years in prison.

Data protection

The recruitment process must comply with the General Data Protection Regulation and the Data Protection Act 2018. This means recruiting employers must:

• Tell applicants how their personal data will be used.
• Only collect data necessary for the recruitment process.
• Store and process data securely.
• Not retain data for longer than necessary.

A data protection statement should be available to all applicants and referred to in job adverts.

Reasonable adjustments for disabilities

Under the Equality Act 2010, employers must make reasonable adjustments for candidates with disabilities so they are not disadvantaged in the recruitment process. This includes providing accessible interview locations, extra time for assessments or offering alternative ways of completing tasks.

Employment contracts and job offer

Once a candidate is selected for the job,  the Employments Rights Act 1996  requires the employer to provide a written statement of the terms and conditions of employment. This should include salary, working hours and job role. The written statement must be given to the employee within two months of them starting work.

Safeguarding

If the role involves working with vulnerable people, children or the elderly, employers must carry out background checks on the candidate to ensure they are suitable for the role. The Safeguarding Vulnerable Groups Act 2006 (as amended by the Protection of Freedoms Act 2012) established the Disclosure and Barring Service and created a framework for barring individuals unsuitable to work with children and vulnerable adults. Since then, there have been several other statutes requiring background checks for individuals in different employment settings such as health and social care and education.

Trade Union Membership

Section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992, makes it unlawful for an employer to refuse to employ someone because they are or are not a member of a trade union.

Conclusion

Unlike employment agencies, where there is a set of regulations, recruitment in the UK is governed by a multitude of legislation covering equality, misrepresentation, employment, immigration, asylum and nationality and data protection. The wise employer will ensure a well thought out and structured recruitment process to avoid falling foul of any of this legislation.