As the economy is “turning a corner”, is your company considering recruiting new staff or promoting internally?
Recruiting new staff – best practice
Employers, and providers of agency work, should take heed that the duty of care under equality legislation extends to prospective employees at recruitment stage. Applicants are entitled to equal access to employment and treating a person less favourably, either directly or indirectly, under any of the nine prohibited grounds can expose an employer to a monetary penalty as well as reputational damage.
Under the Employment Equality Acts 1998-2011 discrimination based on any one of nine distinct grounds – gender; civil status; family status; sexual orientation; religion; age; disabilities; race; membership of the traveller community – is unlawful. An employer who asks questions on any of these grounds may find itself the subject of a complaint referred to the Equality Authority.
Getting it right from the start
Prior to taking any steps toward advertisements or interviewing, an employer should prepare in writing an objective list of skills and experience required for the job and draft the advertisement around these criteria. The criteria should relate to the functions of the position only. Not only is identifying objective criteria in writing good practice, it creates a transparent system that can be relied upon as a defence to any claim of alleged discrimination – and an absence of documented objective criteria can result in a prima facie inference of discrimination.
The advertisement should be carefully worded to avoid any inference of either direct or indirect discrimination. Also ensure that any third party’s advertisements engaged on the employer’s behalf (such as a recruiter) are also compliant, as the employer can be held liable for its agent’s actions. Application forms, if being used, should be carefully scrutinised. They open up a wider potential to fall foul of the legislation and should be specific to the position being advertised. In practice it is often preferable to simply invite applicants to submit a curriculum vitae to avoid any hint of discrimination.
Once the applicants have been shortlisted for interview, the interview panel should be determined – with a gender balance if possible – and it would be good practice to ensure the interviewer is trained. Enquiries should be made if the applicants require any special accommodation to attend interview.
The list of objective criteria for the position will form the basis for interview questions for each candidate. A list of pre-determined questions or areas to cover should be prepared and a transparent marking system should be adopted and be consistently applied to all candidates. Interviewers should generally adhere to the same interview structure for each candidate to avoid allegations of discrimination.
Employers need to be careful not to ask questions on any of the nine potential discriminatory grounds and should keep detailed notes of each interview. An outline of the demands of the job should be detailed to the applicant to ensure no misrepresentations are made in the interview – as these may be relied upon later by the successful applicant as forming part of their contract of employment. If it is the case that the interview is part of a formal application process, and further steps are required, this should be explained to the applicant. Any conditions precedent such as Garda vetting, reference checking and/or medical checks should be outlined to the applicant and the employer should be clear that any position offered is subject to a satisfactory compliance with these checks. Referees should not be contacted without the prior consent of the applicant.
Interview Notes & Data Protection
An interviewer is obliged to keep notes of the interview and these notes should summarise why an applicant was or was not successful. The notes should be kept for a period of at least 12 months. The importance of keeping these notes cannot be emphasised enough – particularly in cases where applicants have equivalent qualifications. A lack of interview notes will infer a lack of transparency in the process and can be enough to establish a prima facie case for inequality. Without these notes, an employer will find it very difficult to defend a case where there is an arguable case of discrimination. Bear in mind also that under the Data Protections Acts 1998-2003 an applicant is entitled to seek copies of any information held about him or her.
Once the successful candidate is identified and offered a position, a formal contract of employment should be prepared setting out the terms of the appointment and the conditions of employment.
If you have any queries about recruiting staff or putting contracts in place, please contact Marie Claire Scullion or any other member of our Employment Law Group.