Feature

Recruitment: A 5-step legal guide

Recruitment brings with it certain legal risks employers need to be aware of

Aside from the challenge of attracting, selecting and keeping the right candidates, recruitment brings a range of legal risks hospitality businesses should be aware of. 

Because of the nature of the industry and the rise of social media channels, the recruitment process can be made more informal and flexible – but employers need to respect basic legal guidelines in order to avoid bad surprises.

Steve Hughes, an employment law specialist at law firm Foot Anstey LLP, explains: “Claims can arise from a poorly prepared job advert which unwittingly contains discriminatory language, for example a new boutique hotel which advertises for 'cool' or 'dynamic' people.

“More worryingly, employers can find themselves vicariously liable for the acts or omissions of an errant manager who asks a candidate questions which bear no relevance to the job description or volunteers observations or hypothetical scenarios which betray innate prejudice or stereotypical assumptions.”

Though the risk of an employment tribunal claim actually arising from the recruitment process tends to be low, malpractices can be used as arguments to tarnish an organisation’s reputation, and with today’s instant online broadcasting technologies, quickly affect its ability to attract talent.

“The converse is powerful, if you promote best practice, train staff in diversity awareness and introduce rigour into your practices you will attract a wider pool of talent, increase employee engagement and become a leading employer of choice,” he adds.

Here is a round-up of the legal frameworks surrounding recruitment in hospitality, and Hughes’s tips for efficient and legally compliant practices:

Job specs 

  • Accurately describe the job and the specific duties and responsibilities of the post to give applicants a clear picture. Including tasks or duties that are not performed in practice may put off qualified people from applying but also result in a discrimination claim if applicants believe they have unfairly been denied the opportunity to apply.
  • If there is an opportunity for flexible hours this should also be set out in the job description. This will help avoid discrimination and widen the pool of potential applicants.
  • Ensure the job title does not show a predetermined bias for the recruitment of those with a particular characteristic. Use gender-neutral language and job titles. Avoid words associated with age or youth, such as 'mature', 'dynamic', 'energetic', 'fun' or 'vibrant'.
  • Separate the experience, skills, qualifications, abilities and behaviours that are essential to the job from those that are just preferable.
  • Don’t make your criteria unnecessarily restrictive by specifying particular qualifications as necessary or desirable. For example if Opera proficiency is a must for a reservations agent, use wording along the lines ‘or similar front office package’, ‘or equivalent qualifications’ or ‘equivalent levels of skill or knowledge’ to avoid allegations of indirect discrimination.
  • Make sure your criteria can be tested objectively. For example, ‘leadership’ for a front-of-house manager should be defined in terms of measurable skills or experience.
  • Do not include health requirements in job specs, as it can lead to direct discrimination against disabled people. If manual handling is an intrinsic function of the job, as is the case for housekeepers or waiting staff, it may be permissible to expressly state in the job advert that the job entails frequent bending, kneeling, pushing, pulling or placing of objects weighing less or equal to x pounds. Make sure you word these specifications carefully.

Application form

  • Adopt a standardised process exemplified by a standard application form in order to make an objective assessment of an applicant's ability to do the job.
  • Remove dates of birth and reference to age from your application form.
  • Forms should not ask any questions about protected characteristics.  If these questions are needed due to the nature of the role, you should add a clear explanation as to why this information is needed, and an assurance that it will be treated in strictest confidence.
  • Ensure that personal information required for monitoring purposes is requested in a separate section, detachable from the rest of the application form. This way sensitive information can be removed from the information provided to interviewers, reducing the risk of potentially discriminatory questions.
  • Application forms should always give applicants the opportunity to object to their details being retained.

Interview

  • Ensure that all hiring managers involved in recruitment and conducting interviews have received relevant training on diversity awareness and have ideally been assessed for understanding.
  • Clarify that there is no conflict of interest between any of the candidates and the hiring manager. If the hiring manager has encouraged a former colleague or friend to apply for a role, ensure that there is at least one other person interviewing the candidate and observing any assessment.
  • When shortlisting candidates, refer to previously agreed selection criteria based on the job description and person specification and mark all of the candidates accordingly.
  • Make all shortlisted candidates aware of the process and whether it includes any form of assessment such as a trial shift (see section below for trial shifts). Tell them what form the interview will take and invite them to let you know of any reasonable adjustments which they might require for the interview.
  • Agree internally in advance on a set of core questions to explore relevant background, experience, skill set, ambition, strengths and weaknesses linked to the duties and responsibilities of the role. Ask follow-up questions based on the candidate’s answers.
  • Apply an objective scoring method to these questions, defined and agreed in advance of the interviews.
  • Always record notes of the answers provided by the candidates, but do not write notes on the physical characteristics of the candidate, even just as memory aid. Scan all of the notes from interview, together with the application forms, job advert and internal scoring and keep them for ideally six months for unsuccessful candidates after they have been notified.
  • Avoid asking candidates questions about their personal life, including marital status, the occupation of a spouse or partner, childcare arrangements.

Trial shift

  • Notify candidates in advance if unpaid trial shifts are part of your interview process.
  • Preferably, prepare a list of defined tasks with a marking system and assessment form carried out by ideally two assessors.
  • On the shift in question, ensure that you have a full complement of staff so there can be no suggestion that the candidate is actually working – provided that these measures are in place, there is no obligation to pay the candidate.

Social media

  • If you use social media to undertake a background online check of potential candidates, exercise great care when going online and avoid communicating any observations or opinions by email about a candidate from matter gleaned from the web. Be aware of the fact that unsuccessful candidates can make data subject access requests for as little as £10.
  • Be transparentabout your social media policy in recruitment so the candidate has the potential to clear up their profile.
  • Check out the guidance on background checks produced by the Information Commissioner’s Office.
  • Include social media training in your induction process. From a risk management perspective it is strongly recommended to tell your new recruits about the importance of protecting the brand, guest privacy and your expectations around behaviour on social media both in and outside of work to avoid any unfortunate incidents.

 

Are you looking for a job in hospitality? Or perhaps you want to hire a new employee for a key position within your company? our jobs website jobs.bighospitality.co.uk specialises in vacancies across restaurants, hotels, bars, pubs and clubs.

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