Employment Law: Recruitment and Selection Legal Obligations

The Key Areas of Law Affecting Recruitment and Selection

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The key areas of law affecting recruitment and selection include discrimination, the right to work in the UK, criminal records checks and data protection. When recruiting staff, employers should understand and keep up to date with their legal obligations, making sure their recruitment and selection procedures comply with the law. Here you’ll find a collection of resources on how you can safely recruit within the law.

There is no single Act governing recruitment and selection, but there are many statutes dealing with the employment relationship that have an impact on pre-employment issues. The most significant example is the Equality Act 2010, which makes it unlawful for employers to discriminate against job applicants (and existing workers) because of one of the ‘protected characteristics’: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

Other relevant statutes include:

• Employment Rights Act 1996 - statement of terms and conditions
• Working Time Regulations 1998 - statutory rights such as hours, rest breaks, holidays
• National Minimum Wages Act 1998 - minimum pay for workers and employers (rates are reviewed annually by government)
• Transfer of Undertaking (Protection of Employment) Regulations 2006 (as amended) – deals with issues such as continuous employment where new businesses take over an existing workforce
• Data Protection Act 1998 - governs the lawful processing of applicants’ data

Immigration, Asylum and Nationality Act 2006 - governs checks on right to work in the UK.

Employers should initially assess all applicants on their skills, qualifications and ability to do the job. Some employers, however, ask applicants to provide details about previous convictions for criminal offences on application forms.

There may be some complexities for employers to deal with subsequently, depending on whether convictions are spent or unspent, the nature of the role on offer and whether the role is exempt or not exempt from the Rehabilitation of Offenders Act 1974 (Act).

Great care must be taken by employers as it is against the law to refuse to employ someone based on a spent conviction but it is also important to note that not all convictions can become spent. As a general rule, job applicants do not have to disclose spent convictions to prospective employers.

Larger employers sometimes produce guidance notes for applicants which accompany the application form and confirm whether the post is exempt from the Act.  If the post is exempt, all convictions spent or unspent must be disclosed, and the job application form should clearly state the job is 'exempt from the Rehabilitation of Offenders Act 1974'. If the post is not exempt, applicants do not need to provide details about previous convictions which are ‘spent’.

While there is a clear general rule about allowing certain convictions to become spent, there are many exceptions depending on the type of vacancy. Exceptions to this rule may include:

• Medical and social services roles
• Lawyers
• Accountants
• Police officers
• Positions which involve working with (or in near proximity to) minors.

Employers should seek legal advice when in doubt as to whether they can require applicants to disclose their spent convictions. Where a candidate is required to do so but refuses, the prospective employer would be within its rights to decline to take the application any further as the candidate has demonstrated that they would not be bound by any mutual trust and confidence which will arise once a contract is entered into.

The National Association for the Care and Resettlement of Offenders (Nacro) has a number of recommendations for employers dealing with criminal record disclosure on application forms. For example, it suggests that employers:

• should remove criminal record disclosure questions from the first application stage of the recruitment process. This ensures that all applicants are assessed on their skills, qualifications and ability to do the job.
• ask questions in relation to criminal records at a later stage in the recruitment process
• avoid a Yes/No tick box approach to criminal record declarations. Detail and context surrounding the criminal record will enable the employer to make a better risk assessment.

Nacro advises employers to adapt their application forms, online portals and recruitment policies and procedures to ensure they do not inadvertently discriminate against people with criminal records.

For more on this subject, see Nacro guidance on asking about criminal records and our pre-employment checks guide.

The government has also produced guidance on employing prisoners and ex-offenders.

Criminal record checks are expressly required for certain posts, particularly for those working in regulated activities with various vulnerable groups, but it is a common misconception that anyone who’ll have contact with children in the course of their employment (for example, a bus driver) must have a criminal background check.

There is, however, a vetting and barring scheme that applies to those who work with children and vulnerable adults (Safeguarding Vulnerable Groups Act 2006) and a ‘blacklist’ of offenders who will be either monitored or barred from working with these groups. Only employers recruiting for roles covered by the legislation may request that applicants be checked against this list, which is maintained by the Disclosure and Barring Service.