Recruitment

by Kate Russell

The selection process

Decide how you want candidates to supply their information. There is an increasing range of choices, including CV format on paper or on-line applications with additional supporting documentation. You may decide that you want to use tests or Psychometric Testing as part of the selection process and you need to consider what will be appropriate.

Application forms versus CVs

The recruitment process involves a good deal of data collection. Conventionally, this is submitted either via application forms or CVs.

Application forms can be designed to collect the exact data you require, so the form rather than the candidate determines what information is included. It is also much easier to compare information submitted by candidates when it is all in a standard format.

In the ideal world, a candidate will design and submit his CV around each individual job applied for. Needless to say this doesn’t often happen. As a result, many CVs give far more information than is wanted, but do not necessarily include the information you need to make a decision about whether to keep the candidate in the selection process. Because the information is not presented in a standard format, you have to read CVs carefully to ensure that you find the relevant information and identify any areas for concern.

Ensure that application forms only ask for the data that is relevant to the job role. Remember to include a GDR privacy statement which explains how you will use and safeguard candidates’ data.

To interview or not to interview

The interview process is one of the least reliable in predicting future success in a job (approximately 33 per cent!), but it continues to be the most widely-used method, because it’s relatively cheap and quick.

You can improve your chances of recruiting the right person at interview by using additional methods of testing a candidate’s suitability. Tests that relate directly to the type of work to be undertaken can increase your knowledge about a candidate’s skills and abilities. Psychometric Testing will enable you to understand their personality better and to match it against your person specification.

When you invite candidates to participate in an interview, make sure that you accommodate any special requirements they may have, where this is reasonably possible. Failure to do so may be a failure to make reasonable adjustments for someone with a disability.

Example

Ms Ridout applied for a job with TC. She told the company that she was disabled and suffered from photosensitive epilepsy. She took medication for her disability and was actively involved in a range of hobbies and interests.

She was selected for interview. The room in which the interview was held had fluorescent lighting, Venetian blinds and light coloured walls, all of which features might predispose someone with epilepsy to an attack. At the beginning of the interview Ms Ridout indicated that she might be put at a disadvantage by the lighting and she may need to wear sunglasses to mitigate its effect. The interview proceeded without the use of sunglasses and without further mention of her disability.

TC did not offer the position to Ms Ridout. She complained to the employment tribunal that she had suffered unlawful discrimination on grounds of disability.

Her claim failed because the employers could not be expected to know that the lighting arrangements at the interview would disadvantage her. She had a very rare form of epilepsy and no reasonable employer could be expected to know, without being specifically told by the job applicant, that the arrangements which were made for the interview might disadvantage her.

The EAT said: ‘It would be unsatisfactory to expect a disabled person to have to go into a great long explanation as to the effects that their disablement had on them merely to cause the employer to make adjustments, which he probably should have made in the first place. On the other hand, a balance must be struck. It is equally undesirable that an employer should be required to ask a number of questions about a person’.

(See the Example invitation to interview letter.)

When selecting a candidate, always keep in mind that you may be asked for feedback. If you can’t justify the reasons for having rejected a candidate to yourself, it will be far harder to do so to the unsuccessful candidate. Always bear in mind that if you haven’t probed for information on a particular subject, you can’t assume one way or another whether the candidate has a particular quality or skill.

Note

Candidates can ask to see your interview notes, so make sure your notes are accurate and objective.

Screening tip

If you can do so it’s helpful to build in some elements of self-selection or screening at the application stage. For example, you might ask the candidate to submit a letter setting out evidence that he or she meets your minimum selection criteria. In a situation where you need your job holder to have some literacy skills, be detail conscious and be able to accurately follow instructions this can save you a lot of time. On one occasion when I managed recruitment for a company we included this requirement. We made it clear in the email correspondence that we would not consider CVs without the accompanying letter. While over 500 CVs were submitted, there were only 12 letters. Eight of those were really good candidates.

Shortlisting

When you short-list candidates for interview, use the job description and person specification to reach an objective conclusion. You may have to justify your decision. An applicant has three months within which to bring a claim to tribunal, so keep a record of your short-list decisions for at least four months.

Example of a shortlist table

Selection criteria – evidence available?
Candidate 1
Candidate 2
Candidate 3
Able to read and write
yes
yes
yes
Manual dexterity
no
no evidence available
no
Ability to use MS Word
no
no
yes

Criminal records

The Rehabilitation of Offenders Act 1974 (ROA) has been amended following the implementation of changes enacted in the Legal Aid and Sentencing and Punishment of Offenders Act 2012.

The ROA supports the rehabilitation into employment of reformed offenders who have stayed on the right side of the law. Following a specified period of time sanctions short of imprisonment and jail sentences (except those resulting in prison sentences of over four years and all public protection sentences*) may become spent. As a result the offender is regarded as rehabilitated.

For most purposes the ROA treats a rehabilitated person as if he had never committed, or been charged with charged or prosecuted for or convicted of or sentenced for the offence and, as such, they are not required to declare their spent caution(s) or conviction(s), for example, when applying for most jobs or insurance, some educational courses and housing applications.

The rehabilitation period (the length of time before a caution or conviction becomes spent) is determined by the type of disposal administered or the length of the sentence imposed. Rehabilitation periods that run beyond the end of a sentence are made up of the total sentence length plus an additional period that runs from the end of the sentence, which we have called the ‘buffer period’. Other rehabilitation periods start from the date of conviction or the date the penalty was imposed.

The ‘buffer periods’ are halved for those who are under 18 at date of conviction (save for custodial sentences of six months or less where the ‘buffer period’ is 18 months).

The rehabilitation periods for sentences with additional ‘buffer periods’ which run from the end date of the sentence are shown in the table below:

Sentence/disposal Buffer period for adults
(18 and over at the time of conviction or the time the disposal is administered).
This applies from the end date of the sentence (including the licence period).
Buffer period for young people (under 18 at the time of conviction or the time the disposal is administered). This applies from the end date of the sentence (including the licence period)
Custodial sentence* of over four years, or a public protection sentence Never spent Never spent
Custodial sentence of over 30 months (2½ years) and up to and including 48 months (four years) 7 years 3.5 years
Custodial sentence of over six months and up to and including 30 months (2½ years) 4 years 2 years
Custodial sentence of six months or less 2 years 18 months
Community order or youth rehabilitation order** 1 year 6 months

*Custodial sentence includes a sentence of imprisonment (both an immediate custodial sentence and a suspended sentence), a sentence of detention in a young offender institution, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, a detention and training order, a sentence of youth custody, a sentence of corrective training and a sentence of Borstal training.

**In relation to any community or youth rehabilitation order which has no specified end date, the rehabilitation period is two years from the date of conviction.

The following table sets out the rehabilitation period for sentences which do not have ‘buffer periods’ and for which the rehabilitation period runs from the date of conviction:

Sentence/disposal Rehabilitation period for adults
(18 and over at the time of conviction or the time the disposal is administered).
Rehabilitation period for young people (under 18 at the time of conviction or the time the disposal is administered).
Fine 1 year 6 months
Conditional discharge Period of the order Period of the order
Absolute discharge None None
Conditional caution and youth conditional caution 3 months or when the caution ceases to have effect if earlier 3 months
Simple caution, youth caution Spent immediately Spent immediately
Compensation order* On the discharge of the order
(i.e. when it is paid in full)
On the discharge of the order (in other words, when it is paid in full)
Binding over order Period of the order Period of the order
Attendance centre order Period of the order Period of the order
Hospital order (with or without a restriction order) Period of the order Period of the order
Referral order Not available for adults Period of the order
Reparation order Not available for adults None

 

Examples

A two year custodial sentence given to an adult may become spent after six years: the rehabilitation period is the period of the sentence plus a further ‘buffer period’ of four years, giving a total of six years.

A two year custodial sentence suspended for two years is spent after six years; the rehabilitation period is the period of the custodial sentence plus a further buffer period of four years giving a total of six years. (A suspended sentence is a sentence of imprisonment and the rehabilitation period is therefore determined by the custodial sentence, regardless of the period for which it is suspended).

A six month sentence of detention given to a young person may become spent after two years: the rehabilitation period is the period of the sentence plus a further ‘buffer period’ of 18 months, giving a total of two years.

A one year community order given to an adult may become spent after two years: the rehabilitation period is the length of the order plus a further ‘buffer period’ of one year, giving a total of two years.

A one year youth rehabilitation order given to a young person may become spent after 18 months: the rehabilitation period is the length of the order plus a further ‘buffer period’ of six months, giving a total of 18 months.

An adult who is given a fine will have to declare this conviction for one year from the date of conviction before it is considered spent.

Sentences which are not covered

The following sentences can never become spent:

  • Sentence of imprisonment for life
  • Sentence of imprisonment, youth custody, detention in a young offender institution or corrective training of over four years
  • Sentence of preventive detention
  • Sentence of detention during Her Majesty’s pleasure or for life
  • Sentence of custody for life
  • Public protection sentences (imprisonment for public protection, detention for public protection, extended sentences of imprisonment or detention for public protection and extended determinate sentences for dangerous offenders).

Employing ex-offenders

In a survey (Employers’ Perception of Best Practice in Prison Education: CfBT Education Trust) carried out in 2011, more than half of the employers surveyed said they consider that they have an important role to play in helping ex-offenders back into the workplace. Around a third of the employers had employed an ex-offender.

Employers recognise that if offenders are able to obtain employment they are less likely to re-offend, so there is a moral duty to give this proper consideration. But prisons can also be a source of talent, particular with regard to accessing technical skills which are in short supply elsewhere. Interestingly, many of the survey respondents also reported that ex-offenders have a very positive attitude in the workplace, another highly desirable element.

The swell of approval for the idea has been gathering momentum over the last few years. In a letter to the FT in 2011, Richard Branson and seven other chief executives, recommended that more companies employ people with a criminal record. ‘Our experience shows that people from prison, if properly selected, will prove to be just as reliable as recruits who come from elsewhere. It is their personality that matters most,’ they wrote.

The letter went on to say that prisons were harbouring ‘a large number of potential superstars who get ignored by employers because of their criminal record. It makes sense for UK companies to recruit these individuals and to make use of their skills and enthusiasm’.

James Timpson, the Managing Director of the Timpson shoe-repair chain, has worked closely with organisations like Working Chance, an organisation which helps female ex-offenders find work. He says of the experience ‘Of all the people we have recruited into the Timpson business, the highest success rate has been from serving women offenders’.

In July and August 2018 the Government called for evidence from business, asking for case studies from public, private and voluntary sector employers and organisations which support ex-offenders to find employment.

The Government has always encouraged employers to take a balanced approach when considering the suitability of ex-offenders for employment, having regard to such factors as:

  • the person’s age at the time of the offence
  • how long ago the offence took place
  • whether it was an isolated offence or part of a pattern of offending
  • the nature of the offence
  • its relevance to the application or post in question, and
  • what else is known about the person’s conduct before or since the offence.

Disclosure and Barring

The Disclosure and Barring Service (DBS) helps employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups, including children. It replaced the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) in September 2012. It is responsible for processing requests for criminal records checks; deciding whether it is appropriate for a person to be placed on or removed from a barred list; and placing or removing people from the DBS children’s barred list and adults’ barred list for England, Wales and Northern Ireland.

When do you need to carry out DBS checks?

The legislation aims to strike a balance between rehabilitating people with criminal records and the need for disclosure to protect certain groups of people who may be vulnerable, or to prevent wrongdoing in select professions.

Applicants are only obliged by law to provide this information in certain circumstances. Where these apply, an official check is carried out by the Disclosure and Barring Service.

While there is no express restriction on an employer seeking voluntary disclosure from an applicant or employee, the Rehabilitation of Offenders Act 1974 restricts the level of information that an applicant or employee needs to disclose.

For example, spent convictions do not normally need to be disclosed. Nor, if voluntarily disclosed, can the employer dismiss the application (or an existing employee) on that basis alone. There are, however, exceptions to this rule. An employer can - and should - through a DBS check, enquire about spent convictions and refuse to employ an individual if the role in question relates to any of the following:

  • Professions (eg lawyers, doctors, officers of the court, the police)
  • Certain regulated occupations (eg financial services)
  • Roles that could affect national security (eg air traffic controllers, certain crown roles)
  • Working with children or vulnerable persons (eg teachers, social workers, caregivers)

DBS Checks – Eligibility Guidance

A DBS check is a report listing a person’s criminal convictions and cautions. There are four degrees of checks:

  • Basic check: reporting any unspent convictions.
  • Standard check: covering spent and unspent convictions, cautions, reprimands and final warnings.
  • Enhanced check: standard check plus any information held by local police considered to be relevant to the role.
  • Enhanced check including barred lists: enhanced check plus notification of any inclusion on lists of people barred from specific roles or professions.

The person going through a DBS check - ‘the applicant’ - must give you original documents proving identity. The documents needed will depend on the route the application takes. The applicant must try to provide a number of original documents, including evidence of his address. These will be drawn from a number of categories.

  • Primary identity documents such as passport
  • Trusted government documents such as driving licence
  • Financial and social history documents such as bank or building society statement

Getting a DBS check

In January 2018, a new procedure for obtaining a basic check in England and Wales was introduced. Instead of the (sometimes lengthy) process of applying to Disclosure Scotland, a basic disclosure certificate can now be obtained directly through the DBS section of the gov.uk website.

Tips

  • Make it clear to the prospective employee early on when and what kind of checks will take place.
  • You can’t require a prospective employee to take out a subject access request as a condition of employment. This is a criminal offence under the Data Protection Act 1998.
  • Comply with data protection laws when handling criminal records of employees or prospective employees.
  • Be aware of whether your business falls within a category that is able to withhold employment from an individual on the basis of a spent conviction.
  • Don’t have a blanket dismissal policy; instead consider the nature of a criminal conviction in relation to the specific role, including the context and seriousness of the offence and time passed since.
  • Don’t dismiss an employee if they voluntarily disclose a spent conviction or one is revealed through a DBS check unless the profession falls within the list of exceptions. This would be in contravention of the Rehabilitation of Offenders Act and could lead to heavy fines and potentially bad publicity.

Visit the Disclosure & Barring Service for the current version.

Pre-employment health screening

Pre-employment enquiries about health issues were thought to be one of the main reasons why disabled job applicants often failed to reach the interview stage. The EqA has substantially reduced the circumstances in which pre-employment health screening can be used. The law now says that an employer must not ask about the health of a candidate before offering work to the candidate; or where the employer is not in a position to offer work, before including the candidate in a pool of applicants from whom the employer intends (when in a position to do so) to select a person to whom to offer work.

The effect of the change means that any health screening should generally take place after an offer has been made (on a conditional or unconditional basis). This prohibition also applies to questions asked by an occupational health advisor on behalf of the company.

Once the job offer has been made, any questions should be appropriate and relevant to the job applied for and they should not be excessive in their probing. It would therefore be acceptable to ask about back and joint problems if a job involved some degree of lifting that could not be mechanised. Where it becomes apparent that the candidate has a disability, the employer will have to consider taking such reasonable adjustments as it can to enable the employee to continue in work. A failure to do so may lead to a complaint that the employer has not made reasonable adjustments as required by the legislation.

There are some exceptions to the general ban on pre-employment health screening. Prospective employers can ask health-related questions before short-listing or making a job offer if it is necessary for them to do so for one or more reasons permitted by the Act. The reasons include:

  • The employer needs to establish whether the employee is fit to undergo an assessment, or whether the employer has a duty to make reasonable adjustments in connection with an assessment
  • The employer needs to establish whether the job applicant will be able to carry out a function that is intrinsic to the job concerned
  • The employer wishes to undertake diversity monitoring
  • The employer is considering taking positive action in relation to disabled persons; and it is a genuine requirement of the job that the employee has a particular disability.

A question that does not fall within one or more of these exceptions will be prohibited.

For more information, see the Disability Discrimination topic.

Information collected about health, both physical and mental, is covered by the Data Protection Act 1998 as amended by the Data Protection Act 2018 and express written permission must be given by the data subject to allow you to collect and process it.

Equal opportunity monitoring

Many organisations collect equal opportunity information during the recruitment process.

There is no legal requirement to issue equal opportunity questionnaires, so why do it? Without monitoring, an organisation won’t know whether it is truly operating in a lawful and non-discriminatory way.

Monitoring can tell you how effectively you are trawling the market for candidates and whether you are offering equality of opportunity and treatment across the board. It can also tell you how and why you are falling short of this ideal. You can then concentrate on finding solutions and making changes, rather than using guesswork or assumptions. For example, an organisation that encourages job applications from under-represented groups may be wasting its time and money (and possibly doing more harm than good) if the real reason for a group’s under-representation is that people from that group are already applying but being rejected for whatever reason.

Monitoring has wider benefits too. In employment, monitoring can spot barriers that are preventing you from making use of available talent. It also helps you to avoid what could be costly complaints of discrimination, by making sure that you pick up and tackle problems at an early stage.

The cost of discrimination claims can include legal fees, compensation payment and management time, not to speak of the emotional distress for those involved, as well as possible wider damage to staff morale.

Finally, monitoring can help to improve your reputation both as a good and fair provider of goods or services and as a good employer.

Click here for an example equal opportunities monitoring form.

Recruitment and Data Protection

Make sure that you only collect data that is relevant. You may require different data at different times. For example, it will be appropriate to ask about skills, qualifications and experience prior to interview because you need the information to assess whether a candidate can do the job. In most cases you can’t gather any data about a candidate’s health until after a job offer has been made.

Don’t ask for information that is not relevant. For example, in most cases there will be no need to find out about dependents at the initial stage. This may become relevant later on if you offer benefits, such as medical insurance, that also apply to dependents.

There are strict rules relating to the collection and processing of special personal data. This includes information relating to the data subject’s racial or ethnic origin, political opinions, religious beliefs, sex life, sexual orientation, biometrics and health. Special category data is personal data which the GDPR says is more sensitive, and so needs more protection. Unless there is a relevant GoR in most cases special personal data is not required for recruitment purposes.

Make sure that personal data is kept secure and confidential at all times: for example, application forms and CVs should be kept locked away.

ICO Guidance on processing Special Category Data