The outlook for the UK economy remains gloomy, with graduates reportedly facing the worst job market in a generation. Here, Sara Booth, employment specialist at Shoosmiths LLP, looks at how recruiters can select the best candidates without falling foul of the law.
Graduate recruitment programmes require a significant investment of time and resources. The process does not end simply with appointing the right candidate; it continues throughout their career. As technology develops and regulation increases, it is all too easy for employers to get it wrong.
Equality laws protect job applicants against discrimination, harassment and victimisation during recruitment.
Sara Booth, employment specialist at Shoosmiths LLP.
Even where a recruitment policy is applied equally to all candidates, those with a “protected characteristic” could be put at a particular disadvantage by it. This would amount to indirect discrimination unless the employer could show: that it was a proportionate means of achieving a legitimate aim; that there is a good business reason for adopting the policy or procedure; and there is not a less discriminatory way of achieving this (an “objective justification”).
The recruitment process
The first stage of any recruitment process should be to scope and develop the job description, ensuring it is objective and skills-based.
The equality implications of any requirements should be considered (for example a requirement that the role is full time could indirectly discriminate against women with childcare responsibilities and a requirement for a particular level of qualification or experience could be discriminatory on the grounds of age), and any potentially discriminatory requirements of the role should be able to be objectively justified.
Next, consider how the role will be advertised. Employers should aim to access the widest pool of talent and decide what media will reach the most diverse groups of potential applicants. An employer operating in an area with a large ethnic minority population could consider advertising in non-English language newspapers.
While it may be tempting to assume that all graduates will be tech-savvy youngsters, glued to Twitter and Facebook, employers should remember that there is an increasingly mature student population that may not fit this stereotype. Employers should take care not to give the impression that mature applicants will be disadvantaged; “graduate” does not necessarily mean a 21-year-old.
Application forms should also be available in a number of formats (such as Braille, large print and audio), to ensure that disabled applicants are not discouraged from applying.
The Equality Act 2010 prohibits employers from asking questions about a candidate’s health and disability before a job offer has been made. There are however, still some limited circumstances in which an employer can ask health questions, including where the question relates to an occupational requirement of the job or for the purpose of making reasonable adjustments to the recruitment process.
The structure and questions for each interview should be the same, as far as possible, to ensure that all candidates are given an equal opportunity to demonstrate their suitability. Proposed questions should always relate to objective factors such as skills and aptitude and the particular requirements of the role as set out in the job description and person specification.
Questions at interview relating to a candidate’s sex, race, age or disability are generally “no-go” areas. Interviewers should be wary of innocently straying into areas which may indirectly touch on these characteristics.
Historically, attending graduate recruitment fairs and handing out branded goodies was enough to raise an employer’s profile among the student population. Now, to stay ahead of competitors, graduate recruiters must engage with their target audience through a variety of media.
While social media can be a fantastic tool for employers, it is essential that recruitment staff are properly trained and covered by robust policies in order to prevent abuse. The risk of reputational damage from ill-advised comments posted by staff should never be overlooked.
Employers should avoid using Facebook to “vet” applicants by looking at their online profiles. While this is unlikely to be caught by data protection legislation (unless employers print off or forward a copy of an applicant’s profile), acting on the information discovered could be discriminatory. For example, if an employer discovered an individual’s sexual orientation by viewing photos posted online, the fact that the employer was aware of this information could raise an inference of discrimination if an applicant was not offered the job.
Employing non-EEA nationals
The Employment Appeal Tribunal previously held that an employer’s internal policy of never accepting applications from non-EEA nationals, who required visas or work permits, was indirect race discrimination. Graduate programmes should therefore be open to non-EEA nationals to apply and should not reject an applicant automatically, should it later transpire that he/she requires a visa.
The removal of the Tier 1 (Post Study Worker) visa route earlier this year means that, save for some limited exceptions, a successful non-EEA applicant will need to be “sponsored” by the employer under UKBA’s points-based system. This will require time and monetary investment from the employer.
It is likely to be indirectly discriminatory on racial grounds for an employer to refuse to obtain a sponsor licence; refusing to do so on grounds of costs alone is unlikely to be an objective justification.
Employers should also be aware of the practical problems that the “graduate-factor” can throw up. University leavers may go travelling and be difficult to contact during this time. It may also be the first time the graduate has been in the workplace or lived away from home, so the applicant may have questions about the process.
Employers should ensure their graduate recruitment cycles are flexible enough to allow them sufficient time to carry out the following steps to employ a non-EEA applicant:
- To sponsor a non-EEA national, the employer must be a UKBA-registered sponsor, and will need to apply in good time to become a licensed sponsor.
- Once an employer has a sponsor licence, it sponsors the non-EEA national by assigning a Certificate of Sponsorship (CoS). Before assigning the CoS, the role should be advertised in accordance with the resident labour market test (RLMT), which requires that the role is advertised in a specified manner for a minimum period of 28 days.
- Once the CoS has been assigned, the non-EEA national can then apply for a visa to work in the UK.
With criminal liabilities and civil penalties being in place for employers in breach of immigration rules, it is imperative that organisations ensure that an individual has the right to work in the UK, before that individual commences employment. Offers of employment should always be conditional upon the successful applicant obtaining the right to work in the UK.
With careful planning and a good understanding of the numerous legal and practical pitfalls, HR teams can ensure a smooth graduate recruitment cycle.