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The recruitment process is often a positive experience for those involved but there are a number of legal pitfalls that employers should be mindful of before embarking on the process.

GDPR in recruitment

Job applicants are data subjects for the purposes of the Data Protection Act 2018 and the GDPR. Specific guidance on data protection considerations during the recruitment process can be found here: https://ico.org.uk/media/for-organisations/documents/1064/the_employment_practices_code.pdf

Generally, however, applicants should be made aware of how the employer will process the information they supply and how long it will be held for. The best way for employers to provide this information is by having a specific privacy notice related to job applicants that can either be stored centrally on the recruitment section of their websites or be given out to job seekers as part of the application pack.

How to avoid discrimination in recruitment and selection

The provisions of the Equality Act 2010 (EqA) apply to job seekers as well as workers. At all stages of the recruitment process, therefore, employers should be conscious of the key provisions of the EqA so that they can take steps to avoid discriminatory treatment, thereby limiting the risk of claims being brought against them.

One of the main areas of risk for employers during the recruitment process is the interview stage. Employers should bear in mind that job seekers may require adjustments to the interview process because of a disability including, for example, the provision of a parking space near to the building or more time to complete written assessments. Employers should make efforts to accommodate those adjustments that are reasonable, bearing in mind their resources and the effect any adjustment, or lack thereof, will have on the applicant, to ensure they are compliant with the EqA. When interviews do take place, interviewers should avoid asking irrelevant questions that might be related to protected characteristics. They should also receive specific training around anti-discrimination and diversity, and this should be clearly recorded on their personnel file.

There are also several practical and more general steps that employers can take to reduce the risk of discrimination claims during the recruitment process. They should, for instance, ensure that their Equal Opportunities and Anti-Discrimination/Harassment policies make specific reference to job seekers, and they should ensure that specific reference to Equality of Opportunities/Anti-discrimination is clear on individual vacancies or more generally on the recruitment section of their website.

Where Equal Opportunities monitoring forms are provided as part of the recruitment process, these should be anonymised and kept separate from the interview packs so that the contents cannot be said to have influenced recruitment decisions.

How to legally withdraw an offer of employment

Following interviews and once offers are made to prospective employees, employers may wish to withdraw offers of employment for a variety of reasons. For example, the needs of the business have changed, or the employer has discovered something about the applicant which is of concern.

A job offer can be withdrawn at any time before the applicant has accepted it. Once an offer is accepted, however, an employment contract will exist and the employer will need to ensure they serve the notice to which the applicant is entitled under that contract. Failure to do so could result in a breach of contract claim.

Beyond this, best practice dictates that employers should properly document the reason for withdrawal. As above, the provisions of the EqA apply to job seekers as well as employees and a disgruntled applicant who has their offer withdrawn may try to point to a discriminatory reason for the withdrawal.

With the likelihood of higher levels of recruitment on the horizon, employers should seize this opportunity to review their recruitment practices to make sure they stand up to scrutiny.

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