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Recruitment and Selection


Client question

I have had several staff leave over the last year, and, whilst I have no shortage of applicants, I have had problems with some new appointees. How far can I go to test applicants without breaking the law?

The Law

Applicants are protected against discrimination. Before they are even employees they have the right to go to Employment Tribunal if they feel that their non appointment was based upon discrimination.

The Acts

  • Equal Pay Act 1970
  • Sex Discrimination Act 1975
  • Race Relations Act 1975
  • Disability Discrimination Act 1995
  • Sex Discrimination (Gender Reassignment) Regulations 1999
  • Employment Equality (religion or Belief) Regulations 2003
  • Disability Discrimination Act (Amendment) 2004
  • Age Discrimination Legislation 2006

Even more alarming - there is no maximum pay out.

Helpful Hints

There is a world of difference between the best and worst employee and they can make the difference between the success/failure of your Business.

I often ask managers how long they would spend selecting a new piece of equipment and then ask why they only invest an hour in selecting a member of staff.

A professional process will help you and protect you from equal opportunities claims.

Firstly, have a clear job description and person specification. This enables you to write an advert describing the duties and skills that you are looking for in an applicant.

You should short list against the person specification and keep a record of the basis of your decision. Remember, you are shortlisting on their ability to do the job and possession of your required experience and qualifications. Any other criteria will be subjective, for example age, race, sex, hobbies etc. and not related to their ability to do the job.

Your appointee may be with you for several years and will represent a major investment for you. You should ensure that your selection methods are comprehensive. If you rely solely on an interview, be aware that they are notoriously subjective Help yourself by preparing the questions in advance. Consider the purpose of each question e.g. why do you want to know that? What skills, attitude or qualification will their answers help me to discover? You will quickly eliminate questions such as "where do you see yourself in 3 years time" - there can't possibly be a correct answer.

After the interview, score your candidates out of 10 and keep a record on your reasons for the score.

Skills tests are also popular and helpful. Why don't you enlist one of your existing staff to help you in the role play? Ask applicants to undertake a consultation with a new client or even to meet with an irate customer. Role play can be very revealing and will help therapists demonstrate their interpersonal skills (or lack of them).

Not only will this exhaustive selection process help you to pick the best by seeing them perform in a variety of situations, your records should give more than sufficient defence against any claim of discrimination.

The best indicator of future attendance is past attendance. Why don't you have a section in your application form to ask the candidate to specify the number of absences and days they have been absent in the last 2 years. Similarly, you could check out this information with their current employer in your reference request. In your form ask this question directly, the previous employer is likely to be honest.

Employers who got it wrong

  • An applicant applied for a post using her maiden name, at interview she was asked at length about her marital status and family plans. She was not appointed, but won a significant settlement at tribunal.

  • There are dozens of cases where pregnant applicants have not been appointed. Unless the employer can persuade the tribunal that this was based on merit and they have records of a sound recruitment process, inevitably, the tribunal find in favour of the applicant.

  • An employer, in an area with a high ethnic minority population failed to appoint an applicant who was clearly the best on paper. There were no interview records or scoring system and the fact that she had not, in 10 years, employed anyone but white British staff, led the tribunal to the obvious decision that selection had been based on race.

This month's question

A reader recently advertised two posts, one more senior than the other. Ironically, a candidate for the more junior most was the best seen on the day for either post.

The employer was worried about potential equal opportunities issues. However, we live in the real world and it would be foolish to appoint someone less able. The options were to:

  • 1. Invite the person to a second interview for the senior post, you are allowed late applicants. Or,
  • 2. If the interviews were basically the same it would not be unreasonable, if it was queried, to state honestly that the senior post was given to the best candidate seen on the day.

I don't believe there are any issues of race, sex or disability discrimination issues that the runner up, if they become aware, would be able to claim.

David Wright Personnel

Phone - 01302 563 691

Mobile - 07930 358 067