FAQs – RECRUITMENT

We support clients to get the basics in place, whilst advising on a wide range of employment matters.  Our clients range from the very small with just two or three employees, right the way up to bigger organisations with 50+ employees.

In this blog series, HR Consultant Melissa Marlow takes you through the most frequently asked questions about “Recruitment”.

Do employers have to advertise jobs internally?

There is no legal requirement for employers to advertise jobs internally. However, it is good practice to do so and this could avoid a potential case of discrimination if an existing employee views the lack of internal advertising as discouragement to apply.

Should a hiring manager ask for information about an internal candidate from the candidate’s current line manager?

Subject to the internal candidate’s agreement, there is no reason why the hiring manager couldn’t speak with the candidate’s current line manager. However, the hiring manager should bear in mind that the manager’s opinion may be biased and inaccurate. The best source of information about an internal candidate’s ability to do the vacant role is through objective performance-based information such as appraisals and reviews.

Can an employer keep a candidate’s CV “on file” for future opportunities?

In order to do this, within the candidate privacy notice that an employer must provide under GDPR, it should be made clear that they intend to hold CVs on file, the basis for holding such information, and  how long it will be kept for.

Is it unlawful to ask for a job applicant’s date of birth or age on an application form?

There is nothing that prevents an employer asking a job applicant for these details, however it is advisable to think about why the employer needs to ask for it at all. Asking for this information could give the impression that the employer may discriminate on grounds of age.

If the information is not absolutely necessary at application stage, it can always be asked for (if necessary) at a later stage, when the employee has been offered the job.

Is it unlawful to ask a job applicant if they require permission to work in the UK?

No,  an employer can ask a job applicant if they require permission to work in the UK, as long as all job applicants are asked the same question, at the same stage in the recruitment process. Asking the question only to certain applicants could amount to unlawful discrimination.

All employers must by law check that anyone that they offer employment to has the right to work in the UK.

When must an employer check that a prospective employee has the right to work in the UK?

An employer must check that a prospective employee has the right to work in the UK before employment commences (asking to do this on an employee’s first day, after the start time specified in their offer letter or contract is too late). To deal with this employers could state in all interview invites to job applicants that they require to see original documentary evidence of the applicant’s right to work in the UK, and take copies of this.

Within the candidate privacy notice that an employer must provide under GDPR, it should be made clear that they intend to take these details, the basis for holding such information, and  that it will be destroyed if the candidate is not successful for the job, or retained and placed on their personnel file for the successful candidate.

What steps must an employer take to accommodate a disabled candidate for a job interview?

Employers must make “reasonable adjustments” to accommodate disabled job applicants’ needs. The objective should be to offset any disadvantage that their disability would otherwise cause to ensure the individual can compete on a level playing field with all other applicants.

What is “reasonable” in each case, for each employer and applicant will need to be considered within its own context.

Do job applicants have the right to see their interview notes?

Job applicants, along with other “data subjects” have the right to request copies of personal data that an employer holds about them, including interview notes.

Employers should decide, in line with GDPR, how they will store interview notes so they are accessible, whilst being mindful that they should be destroyed when they are no longer needed.

Can an employer ask a job applicant to fill in a medical questionnaire?

Only after making a job offer to a prospective employee can an employer ask them to complete a medical questionnaire. The employer must make sure that they have a legal reason to ask for this information under GDPR, for example in order to establish fitness to do the particular work, to comply with health and safety obligations.

The employer must have a data protection policy in place that explains how they will comply with the GDPR principles for processing such personal data.

Do young persons have the same employment rights, including in recruitment, as people over 18?

Young persons have the same employment rights, including in recruitment, as people over the age of 18, aside from rights related to the National Minimum Wage, working hours, and rest breaks.

The Equality Act 2010 applies equally to young people and the right to complain to an employment tribunal about discrimination is available without any age restrictions.

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