Recruiting Fairly [Video]

Posted in : Back to Basics on 25 May 2016
Gareth Walls
A&L Goodbody LLP
Issues covered:

Every employer in Northern Ireland needs recruits. But equally with that brings some real difficulties. And the tribunals and the courts in Northern Ireland have been mired for many, many years in relation to issues and mistakes made in recruitment.


So what we want to look at now is how to recruit fairly. This is going to be done purely for the context of Northern Ireland because so much of our legislation and case law is unique to us. That said, the principles have general application, largely throughout the United Kingdom and indeed in Ireland as well. So let's take a look at what recruiting fairly actually is.

But first, let's deal briefly with speculative applications and indeed with recruitment consultants.

The Equality Commission for Northern Ireland is fairly clear in regard to both. Speculative applications are discouraged. They are something which happens commonly in Great Britain. But in Northern Ireland because of our particular history in relation to fair recruitment, they are, as I say discouraged.

What does that mean from an employer? Okay. Frequently, it's frustrating because a very good CV, or application might come in. And arguably it is something that we should ignore. Equally, the question has been raised, is it something we should keep on file until such time as a vacancy does arise and can we then contact the individual? Again, the best practice would be no.

Speculative applications should not be encouraged and indeed the individual in an ideal word should be contacted, thanked for their interest in the business but they should have their application returned to them.

You may well say, and you may well be aware of a future recruitment process commencing in due course. And you can tell the individual, A), for example, keep an eye out for ads in various newspapers media or indeed in relation to the business' own internet policy. But that's probably all we need to say in relation to speculative applications at this point.

In terms of recruiting fairly, again it's very important to understand exactly where the process starts. And if I want to be slightly negative at outset, it's to say that I'm providing this insight with a view to understanding how the industrial tribunal views recruitment.

Bearing in mind that they have perfect 2020 retrospective vision. They also can ask for the entire paper trail which illustrates a decision to recruit, as a discoverable document at the tribunal. You have to make sure and understand, that the decision to recruit and to recruit fairly, starts right back with the board or the management team identifying the vacancy.

How do they do that? Do they identify the vacancy and open the opportunity up, internally only, or do they go externally right at outset? Pros and cons to both.

Considering the internal applications only, then, in one sense, yes, all you're doing is retraining an existing employee up- skilling. There's a benefit to that in the sense that you know the individual, you know that they work within the culture, the ethos and actually, you're just doing good career management.

The difficulty is of course, is that while that is an opportunity for the individual and for the business, it also attracts the criticism that it is jobs for the boys, i.e., if we only did internal scrutiny and internal recruitment, then actually the clique which is a great Northern Irish term of employees looks after its own. That is something which traditionally, the Equality Commission in Northern Ireland has sought to address.

In relation to everything which we discuss, as regards the recruitment process, make sure that you always maintain a very strong paper trail because as I say, that can be become a discoverable document and come into sharp focus in the tribunal in due course.

It's very well understood that recruiting fairly in Northern Ireland is very closely aligned with discrimination legislation because, of course, discrimination legislation applies to job applicants as opposed to just employees. Whereas some of the other employment rights such as unfair dismissal, etc., don't attach to job applicants.

Discrimination in Northern Ireland is multi-faceted and it is very well understood. There are a number of protective characteristics, not all of which I will go into now. But it deals with sex. Sexual orientation is developing rapidly in Northern Ireland, disability to include the duty to make reasonable adjustments as at the point of job application process, etc. Indeed it's covered in one of these other sessions.

Also age, very misunderstood in Northern Ireland. But the ability to recruit fairly in dealing with age discrimination, covers off both old and young employees. The misconception is that it only attaches to those who are 60s and approaching the traditional age of retirement at 65. Actually it isn't.

Discrimination attaches to young workers and young employees just in the same way as it would to anyone else. And that's very germane whenever one considers most job applications that are advertised which seek experience. Experience implicitly suggests that, A), someone has to have been in employment in the first place. And 2), they have years' experience on the job, which directly discriminates against the younger employee.

So, bear in mind that everything you write, even in the job advertisement is something which can be brought to bear in a subsequent tribunal and criticised.

Pf course, in Northern Ireland we also have religious belief and political opinion. Again that's an area which is worth a session all by itself, but let's just touch on it briefly because it's very misunderstood.

Fair recruitment on religious belief and political opinion in Northern Ireland, does not mean recruiting 50-50 between Protestants and Roman Catholics. It's actually much more complex than that. One should consider registration with the Equality Commission.

In fact, many employers, dependent on size, are obliged to. But even if you are a small employer and not obliged to register with the Equality Commission necessarily, the best advice anyone can give, is to become familiar with the Equality Commission website. All the training which they provide and all of the guidance they give, the good practice guide, the best practice guides, all of that resource is of fundamental importance to any employer in Northern Ireland.

It's not just registration, it is also the compliance. Because the Equality Commission has an obligation to monitor compliance with the Fair Employment and Treatment Order in Northern Ireland, and that requires annual and triannual reporting.

But recruiting fairly does not stop there. There are many other legislative impacts we need to consider. For example, the criminal records check. A lot of employers will seek to remove or withdraw the offer of employment, if they consider that their job applicant has a criminal record. Again, that is perhaps a viable and understandable approach to take, but it will offend the rehabilitation of offenders' legislation. Consider what that might mean for you as an organisation before you make the job offer.

Consider other aspects, financial regulators much more heavy handed now in relation to compliance, post banking issues. Not just in Northern Ireland but everywhere. So that an individual may well be debarred from conducting certain types of roles. They may be formally a director, they may be formally a bankrupt in certain circumstances which will debar them from certain roles.

So what I'm really saying is that recruiting fairly is not just the traditional piece, in relation to discrimination. It is also bearing in mind all those other regulatory aspects which impact on your particular industry and making sure that you are in full compliance of that, before you make a binding offer.

So you have an ongoing obligation to monitor the applicant and you have to factor in when, timing wise, it's important to make the offer. Will the offer be conditional? What is it going to be conditional upon? If it's merely conditional upon a reference, that's probably not good enough because no employee in their right mind is going to put down a referee who's going to give them a negative reference.

So conditional on what? Make sure that it's meaningful for your organisation and make sure that the timing of that is appropriate. So you do you have the ability to withdraw the offer. Withdrawal of an offer is difficult because you will frequently be faced with the issue, whereby the employee suggests that they have already had it in their notice elsewhere, and they are fully reliant on the conditional offer that they have made with the new employer. That puts you, as an employer, in a difficult position. It also puts the individual in a difficult position but that's another matter.

So recruiting fairly, as I say, starts going right back with the decision and the identifying of the vacancy. It moves through the advertisement. It moves through the job application process, the induction, the training. And ultimately on appointment, it begins with another probationary period. And in a sense, that's where the fun really starts.

This article is correct at 25/05/2016

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Gareth Walls
A&L Goodbody LLP

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