S
Soundbites | Catalyst
Recruitment
Rules OK!
Harry Abrams, solicitor at Seddons
Q
We are seeing a growing
trend towards recruiting “all-
rounder” flexi-skilled employees,
able to do a variety of jobs, rather
than hiring for highly specific job
roles. Are there legal implications?
There could potentially be an
issue when it comes to redundancy
selection. If an employer does not have
employees in clearly defined roles,
when there is no longer a need for a
particular job to be done, it can be hard
to identify whose role could be affected.
The greater the cross-over between
roles and who undertakes which
tasks, the bigger the grey area in
relation to redundancy pooling
and selection.
Q
Are any notes that are
made during job interviews
accessible to candidates?
While a candidate can request feedback
from their interview, in the UK there is
no legal requirement for the employer
to provide such information. If the
candidate does not receive feedback
or is not satisfied with what is given
to them, there are two formal ways to
obtain interview notes.
The first is via a data subject access
request (DSAR). Any individual is able
to make a DSAR in relation to personal
data held about them by any company.
It is likely that interview notes and
annotations on a person’s CV would
amount to personal data and so would
have to be provided within one month
of receipt of a DSAR.
Interviewing managers and
HR should therefore be made
aware that what they write during
recruitment processes (including
during interviews) may be seen by the
candidate at some point.
The second way a candidate could
obtain their interview notes is during
a disclosure exercise as part of a
tribunal claim. If a candidate alleges
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discrimination, notes made by the
company during the recruitment
process may be important evidence.
The company against which the
claim is made would be required to
disclose any documents that help
or hinder their case as part of a tribunal
process and this would include such
notes if they exist and are relevant.
Q
A number of employers are
making greater efforts to
level the playing field for older
job applicants or those who are
disabled. Are there any things
you can, or should, ask candidates
about their physical health?
The rule to remember is that prior
to any job offer being made, health
questions should not be asked of
a candidate unless one of the few
exceptions applies.
The exceptions include establishing
whether the candidate could carry out
an “intrinsic function” of the role. For
example, is the reason for the question
to monitor diversity or to see if the
candidate needs any adjustments
made to the recruitment process or
the interview itself.
Once a job offer is made, an
employer has more freedom to ask
health questions to the prospective
employee. That is why many offers are
made conditional on the satisfactory
completion of a health questionnaire.
However, an employer is at risk if
it then withdraws a job offer and is
accused of discriminating against
the individual based on the candidate’s
answers to this questionnaire.
Job applicants and employees alike
can bring a claim against a company
for discrimination.
Therefore, if a candidate believes
that they have not been hired due to
a disability disclosed or comments
made in the interview, they can
initiate a claim.