How to keep your recruitment interviews legal

Man in a suit and glasses conducting a recruitment interview with a potential employee

Stay on the right side of the law with our legal round-up of recruitment interview dos and don'ts

Employers must avoid unlawful discrimination when recruiting. Discrimination can either be direct (ie against a particular employee) or indirect (ie when a practice, selection criterion or provision puts employees with a 'protected characteristic' at a disadvantage). To avoid discrimination and other legal claims, you must be fair and be able to show you have been fair.

Do not use criteria that relate to a protected characteristic in your interview form (or job advertisements and application forms) unless you can ‘objectively justify’ them (ie there are sound business reasons). Protected characteristics include:

age
sex
sexual orientation
race
nationality or ethnic origin
disability
religious or philosophical beliefs (which can include political beliefs)
marital or civil partnership status
trade union membership (or lack of)

Particularly beware age and sex discrimination. If you specify a level of experience, make sure it's necessary - not just because you assume an older person will be better at the job.

So, if you need an experienced van driver, you can say so, but don’t ask for a van driver with a ten-year, accident-free record, for example. The first leaves it open to younger people to apply, while the second effectively rules out anyone who isn’t in their late 20s, and could be difficult to objectively justify. Similarly, if you say long hours are required, candidates with children could be prejudiced, so make sure they really are necessary.

Avoid phrases such as 'young school-leaver', 'mature' or 'benefits according to age and experience'. If you require qualifications, make sure they are not age-specific (eg ask for a good working knowledge of French rather than French GCSE, because candidates may have left school before GCSEs were introduced in 1986).

Don't ask for physical fitness tests unless you need them, and then only to the level required.

If a candidate with a disability alerts you to that fact, ask what reasonable adjustments will help at the interview. At the interview, do not make assumptions about what they will be able to do. You can ask them what adjustments they think would be needed. You may need to waive certain of your criteria to accommodate the adjustments.

You will not be discriminatory if you recruit on the basis of objective skills and competences such as confidence, drive, ability to remain cool, leadership skills, communication skills and the ability to get on with people.

Identical criteria

Assess all interviewees against identical criteria. Before recruiting, draw up a detailed job description and standard interview form and measure candidates against these. Record your assessment on the standard interview form. Those forms should not contain age-related criteria. Then you will have the evidence you need if there is a claim of discrimination.

Beware the rules regarding workers from overseas. You are liable to a penalty if you negligently employ someone who does not have permission to work in the UK. Do not assume certain workers are entitled while others are not. Check them all.

There is guidance from the Disclosure and Barring Service on rules restricting what you can ask job candidates about their previous criminal convictions and cautions, to help you make changes to your job application forms and recruitment processes.

You cannot take some old and minor cautions and convictions into account when deciding which job applicants to take on, although where the caution or conviction is for certain serious violent and sexual offences, to do with children or vulnerable adults or which resulted in a custodial sentence, it should still be disclosed.

The guidance, among other things, suggests employers include the following paragraph on their application forms:

"The amendments to the Exceptions Order 1975 (2013) provide that certain spent convictions and cautions are 'protected' and are not subject to disclosure to employers, and cannot be taken into account."

Have a policy

Finally, it helps in any discrimination claim if you have an internal equal opportunities policy and train your employees to stick to it. Giving feedback to unsuccessful candidates will also reduce the chances of a discrimination claim.