The closure of a popular east London restaurant during an investigation into the legal status of its employees sent a sharp reminder to the rest of the UK's restaurants: good employment practices start even before an employee has walked through the door. In this case, the restaurant had outsourced its recruitment process to an agency, bringing into question the issues that can arise and how employers can manage the risks.
Getting your recruitment processes in order is just as important as having good employment practices within the workplace, and getting it wrong can be costly. In addition to tribunal costs and awards for compensation, we increasingly see negative press coverage for employers who make mistakes, whether in terms of right to work obligations or employment laws.
So what are the main pitfalls when recruiting staff?
Right to work
All UK employers have a statutory obligation to ensure that their employees have the legal right to work in the UK and to ask individuals for proof prior to commencing their jobs.
There is a three step check process that employers must follow to comply with the law, which protects them against liability in the event of an employee not having the right to work in the UK:
- Obtain the individual's original documents as prescribed in the Home Office guidance.
- Check (in the presence of the prospective employee) that the documents relate to the individual and are original, unaltered and valid.
- Copy and keep the documents securely and record the date of the check and the dates when follow-up checks should take place.
The Home Office website is very useful. As well as outlining those documents that an employer needs to see, it has guidance on how long the check is valid for and when follow-up checks are required. It also has a useful online interactive tool called Check if someone can work in the UK.
Another area of risk is discrimination – applicants and prospective employees are protected in the same way that employees are. Employers must ensure that their processes are fair and do not expose the business to arguments of discrimination when candidates are not successful in applying for a role. Tips for protecting yourself from a successful claim include:
- Think carefully about what information you request on an application form. Do you really need to know someone's date of birth or marital status to assess whether or not you want to invite them for an interview? If you do not ask for information about protected characteristics then you cannot be accused of taking them into account.
- When interviewing, ensure that all candidates are asked the same questions, and that they focus on the requirements of the role rather than the potential employee.
- When deciding which candidate should be offered a role, check the internal decision-making process to avoid any unconscious bias slipping in. Ensure that decisions are made by a range of people with different views and perspectives.
- Document everything! Keep notes of interviews and also make and keep notes of internal discussions about who to offer a role to and why. This will help you defend any challenges.
Making the right choice
Making the right decision about who to employ is of course easier said than done. Sometimes it goes wrong, and sometimes the person who turns up to start work is unrecognisable from the candidate who appeared at interview. The important thing is to take action when it is clear that a wrong appointment has been made – don't be afraid to admit that the business made an error.
Increasingly, we see businesses using external providers to assist with recruitment. This can be really helpful and constructive, but it will not necessarily protect your business from liability if something goes wrong. If you outsource some or all of your recruitment processes, make sure you are 100% comfortable with the organisation you employ – take up references from other clients and check their insurance position in respect of possible claims.
Employers should think carefully about what recruitment processes they outsource. While you may want assistance with some of the paperwork or administration, you may prefer to retain control over final decisions. After all, you and your colleagues will be working with the successful applicant and it's your business and reputation that's at stake.
Esther Smith is a partner at UK law firm TLT @TLT_Employment.