Recruitment and selection guidebook Apr15

Recruitment & Selection Guide A practical guide for small employers to help them follow the law and best practice when recruiting a diverse and productive workforce

Recruitment and Selection Toolkit

Apr 2015

Promoting effective workplaces

Terms and conditions for use of toolkits PERS produces a number of publications such as Toolkits, model policies, and fact sheets which cover a wide range of employment topics. They are regularly updated to ensure that they comply with changes in employment legislation and new case law. All are accessible through the PERS website, see www.pers.org.uk/employment-rights/publications Toolkits, such as this one are intended for organisations/businesses and subscribers to PERS, and should be used to embed best practice within their own organisations. If you wish to subscribe to PERS, email admin@pers.or.uk or see www.pers.org.uk.

PERS recognises that some organisations may wish to make use of this toolkit for other purposes, for example in delivering training programmes. In such instances PERS would make it a condition that: • PERS is credited as the source • this summary and the address www.pers.org.uk are displayed • the text is not altered and the date is always clearly shown • the work is not resold • a copy of the work or link to its use online is sent to PERS Users of this toolkit are welcome to ask for permission to use this work for purposes other than those covered by the licence.

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Table of Contents

Supplementary material (available separately) 1. Find the best person for the job:

Sample recruitment timetable, sample job advertisement Application pack – sample covering letter, job description, person specification, background information and staff structure, guidance notes, application form, equalities monitoring form Shortlisting – sample score sheet Interview – sample interview timetable, sample letter inviting candidates to interview, sample interview questions, sample interview scoresheets.

Requesting references – sample letter and form

2. Acting lawfully:

Immigration and Asylum Act – lists of acceptable documents Sample criminal convictions declaration form

Disclaimer PERS has taken great care in producing this document to ensure it is consistent with our interpretation of the law and best practice at point of publication. PERS takes no responsibility for any deletions or additions to this document that have not been endorsed by us.

Introduction: The five principles 1) find the best person for the job 2) act lawfully 3) positively seek diversity 4) promote your organisation/company 5) pre-empt problems There is no one right way to recruit staff but there are many wrong ways. Getting it wrong can be extremely damaging both to your organisation and to the individuals involved.

What if I get it wrong?

It is very easy to get it wrong. Some extra time and care put into the  Copyright PERSrewarded. If you get it right it is recruitment and selection process will be well This document may be reproduced in whole or in part subject to acknowledgement of source less likely that you will be faced with problems such as: high labour turnover, 13th Apr 2015 3 of 97 absenteeism, low morale, ineffective management and supervision, disciplinary problems, dismissals and possible unfair dismissal complaints.

ACAS Information Sheet

Recruitment and Selection Toolkit

Apr 2015

Promoting effective workplaces

In addition to taking you through the process step by step this toolkit suggests various options at each stage and gives a number of practical models and examples that you can adapt for use in your own workplace.

1.

Find the best person for the job

This is what the process is all about. The ‘best person’ will not necessarily be the person you imagine when you are planning your appointment. You may think in terms of someone like you, or someone like the person who did the job before or even the opposite of someone who did the job before. Everyone has preconceptions, but acting on your preconceptions will limit your choice and mean that you will have far fewer people to choose from.

Finding the best person involves: •

casting your net wide and making your job attractive to a lot of people

•

being clear about the job you want doing, not the person you want to do it

•

following an objective, fair and manageable process of selection

•

giving appropriate information and support to the person appointed when they

start the job This toolkit has all the tools to enable you to advertise creatively and to follow a clear and well thought out selection process.

2.

Act lawfully

Despite popular belief, the selection process is not heavily constrained by the law. However if you do fail to observe the relevant pieces of legislation the consequences could be severe, both financially and in terms of wasted resources and damaged morale. Legislation which applies to the selection process is:  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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• The Equality Act which replaced other anti-discrimination law in October 2010.

• Immigration law.

• Data Protection Act. • Disclosure and Barring Service (DBS) merges the functions previously carried out by the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA).

• Statutory contractual terms, such as national minimum wage, parental rights, time off, etc.

• Contract law.

This toolkit will give you clear guidance on each of these aspects of law.

3.

Positively seek diversity

The benefits of a diverse workforce that reflects your community and offers opportunity to people on the basis of their abilities and not their background has been widely established.

Workplace attitudes and policies which aim to be inclusive and sensitive to a variety of needs benefit everybody.

This toolkit will give ideas on how to make accessibility and equal opportunity a part of your selection and your employment policies.

4.

Promote your organisation

Recruitment is about you choosing an employee and also about potential employees choosing you. Any recruitment process is expensive for an organisation, both financially and in terms of time and other resources. Use it as an opportunity to advertise yourself as a good employer offering real benefits to staff and consumers alike.

Remember too that applying for a job is usually a stressful and potentially life-changing undertaking for applicants. If you recognise this and treat them with the respect and  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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sensitivity they deserve, they will act as positive ambassadors for your organisation whether or not they decide to apply for your job and whether or not they are successful in securing the post.

This toolkit will give you the tools to follow best practice in your advertising and recruitment process.

5.

Pre-empt problems

Even the best plans are subject to unforeseen problems but awareness of some of the possible pitfalls can help to prevent them. Well thought-out and well-used policies, e.g. Equality and Diversity and Recruitment, will help with this.

This toolkit provides you with a bank of practical model paperwork (advertisements, application packs, letters, questions, policies) to save you both time and re-inventing the wheel. It looks in particular at common issues around resources (money, staff time, availability of selection personnel) and examines various options that might help you in your own situation.

If you follow the guidance in this toolkit you should avoid most foreseeable problems.

However we also provide advice on troubleshooting in tricky situations and offer you an ongoing advice and consultation service to help dig you out of any holes that open up along the way.

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1.

Find the best person for the job

Planning the recruitment process Before you start your recruitment process, ask yourself the right questions. If you get this right, all the rest will follow. Establish where you are ‘pitching’ your recruitment process before you consider other aspects such as timetable and budget. Although the process will be fundamentally the same, recruiting a cleaner should make fewer demands on your resources than recruiting a Managing Director.

Ideally all members of any selection panel, but one person as a minimum, should be trained in recruitment using a course which includes a section on equality and diversity. You should try to arrange training for people who might be involved in a selection panel so that enough people are trained when a vacancy occurs. PERS runs regular Recruitment and Selection training courses, see www.pers.org.uk and follow links to ‘Training’.

If panel members have not attended training, you should make their role very clear. You must also ensure that everyone understands basic principles of confidentiality and of appropriate and non-discriminatory behaviour.

Timetable Give yourself enough time. Recruitment is a lengthy process and depends on getting crucial dates right to suit your own constraints and needs. Your needs may be determined by funding deadlines, by staff ratio demands (as in caring establishments), by pressure of work on existing staff or by the need to get someone in post to overlap with, and be trained by, the previous post holder. Your constraints may be decided by publication dates for advertising, by availability of your selection panel or interview rooms, by school holidays or religious festivals, by election dates and by the fact that a very long drawn out process may mean you lose good applicants along the way. You need to allow enough time for people to see and respond to your advertisements, to complete thoughtful applications and for your shortlisting panel to receive and read the applications. You need to factor in the likelihood that a new appointee will have to give notice to their current employer.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Checklist •

When do we need to have the new worker in post?

•

What are the constraints we need to take into account?

• What dates can we set for: completing the application pack; advertising; deadline for returned applications; shortlisting; inviting shortlisted candidates to interview; interviewing; (ideally) having the new appointee start work?

There is a sample recruitment timetable in this toolkit.

Budget Advertising, in particular, is expensive. It is vital that the money you spend on advertising works for you effectively. See later in this toolkit for more detailed considerations of how and where to advertise. You also need to remember the costs of copying and distributing application packs, sending letters to candidates, paying travel expenses, and the cost of staff time. It might be that your money would be more effectively spent employing, for instance, a recruitment consultant. Money wisely spent now can be cost effective in saving further recruitment costs at a later date, as well as positively promoting your organisation.

Checklist •

How much can we afford for advertising?

•

How is this best focused?

•

What other costs will there be?

•

Can we afford/do we want specialist support? (e.g. recruitment agency).

Staff resources Successful recruiting is time-consuming. Plan workloads so that your staff know who is doing what and when. Give everyone copies of the recruitment timetable. Remember to  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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maintain confidentiality at all times and to instruct staff accordingly. Consider whether any of your panel are new to the process and may need extra guidance and/or training.

Checklist Who will •

Manage the recruitment process?

•

Draft advertisements and negotiate with advertisers?

•

Handle website advertising?

•

Devise and check application packs, including background information,

application forms etc?

•

Respond to enquiries as a result of the advertising, photocopy and send out

application packs?

•

Be on the selection panel (and how many)?

•

Send letters to applicants?

•

Plan interview questions/tests?

•

Greet and look after candidates at interview and administer tests?

•

Do interview follow-up, informing candidates of outcomes, giving feedback,

seeking references etc?

•

Make the final decision about the job offer and any conditions regarding

salary, probation, training, health/qualification checks, references?

Consider all options Look again at your aims – getting the best person for the job in the most resource effective way, being adventurous, objective and law-abiding in your methods, promoting your organisation. Look at your constraints – staff time, urgency.

Could you achieve your desired results more effectively?

•

Could you legitimately run an internal recruitment process first? (but be

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not to contravene equal opportunity principles) •

Could you legitimately advertise for volunteers? (but be careful not to use this

as an exploitative option) •

Have you considered the possibility of job share, part-time posts,

homeworkers?

•

Could you benefit by using a recruitment agency, a recruitment centre,

tendering, secondment? (but be realistic about financial costs and pitfalls) •

Could you advertise abroad? (but check regulations about recruiting from

abroad and think about how will you handle interviews) •

Could you sift/shortlist/interview by telephone? (but make sure you do this

fairly and have checks in place to balance individual judgments) •

Do you really need a written application form? (but think carefully about what

you put in its place)

b)

Planning job design and content

Job description The job description is the most important document in your whole process. It will be the principal tool in your selection process from job advertisement to scoring at interview and will also be your primary means of measuring performance for the new appointee. Along with the Written Statement of Employment Particulars, it has major contractual importance in your on-going employment relationship.

Checklist What exactly do you want the job holder to do?

• Have you consulted with relevant people, such as the current job holder, other staff or committee members?  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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• If you had an exit interview with the previous job holder, have you considered and incorporated any relevant points made by them?

• Are there any restrictions, e.g. from funders?

• Is what you are proposing realistic? Is it clear? How flexible is it? Does it include sensible ‘catch-alls’ whilst avoiding meaningless generalities?

• Is it specific enough to help your performance management of the job holder once in post?

• Is it accurate enough to enable you to draw up a fair and objective person specification?

• Is there a ‘Genuine Occupational Requirement’ meaning that the job needs people with a particular personal characteristic to do it? (See section on AntiDiscrimination Law.) There is a sample job description in the ‘Supplementary Material’ accompanying this toolkit.

Person specification The person specification is drawn directly from the job description. It is your principal tool in ensuring that the selection process is fair and objective and is based on what is actually needed in order to perform the job well, not on your preconceptions of the kind of person you would like to have in your organisation. Resist any temptation to make the job fit someone who needs or ‘deserves’ it.

Other options Many organisations now assess jobs and candidates on a carefully constructed system of devising and measuring ‘competencies’. The purpose is to eliminate all non-essential considerations and also to ensure a system with a clear structure for job development and personal staff growth. For smaller organisations, a carefully constructed person specification should meet the same objectives.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Checklist What does the prospective job holder need to bring to the job?

• What qualifications, skills, experience, qualities and attitudes are essential to perform the tasks in the job description? What qualifications, skills, experience, qualities and attitudes are desirable?

• How will you test each of these?

• Are any of the requirements superfluous? (for instance, you probably only need to ask for a sense of humour if you are advertising for a comedian or a clown) There is a sample person specification in the ‘Supplementary Material’ accompanying this toolkit.

Terms & conditions Advertisements, application packs, letters and statements made at interview can all form part of the employee’s contract of employment. It is important that you say what you mean right from the start so that you do not risk being in breach of contract later on (see section on ‘legalities’). Additionally, the terms and conditions on offer may play a significant part in determining whether or not a potential applicant decides to apply.

Checklist What are you offering in terms of salary, pension, holidays, sickness and parental benefits, flexible working patterns, training, staff development?

•

Is the post fixed term, or permanent but subject to funding?

•

Do your terms and conditions meet minimum statutory requirements (e.g.

national minimum wage, equal pay for equal work or work of equal value, statutory holidays, statutory parental entitlements) or can you afford to be more generous?

PERS can provide information and advice on all your statutory and contractual obligations and options. Please look at our website, especially the section on ‘Model Policies’.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Lines of responsibility Clarity about who will manage the new employee’s induction, probation and subsequent performance need to be established from the start. This will have resource implications for other members of staff. The job description should also state what the post holder’s own management responsibility will be and the salary should reflect this.

Checklist • Who will line manage the new employee?

• Who will ‘mentor’ the new employee?

• Who will be managed or supported by the new employee?

c)

Putting the application pack together

Make your packs as helpful, informative and professional as you can. Remember that you are selling your organisation. Remember too that you want people to apply, so encourage applicants to submit good applications and don’t create unnecessary hurdles. See the section of this toolkit on ‘Positively Seeking Diversity’ for suggestions as to how you can make your packs accessible and user-friendly to as many people as possible. Offer your packs in alternative formats for people with visual or other impairments.

Prepare a number of packs by pre adding attachments to emails or in their envelopes in advance of advertisements appearing so that all you need to do is to add an address and hit send/ add a stamp. Keep a record of names and addresses to which you have sent packs.

Check that all documentation is also on your website if you are using this, and that any electronic forms work. Make it clear how you will deal with ‘signing’ electronically submitted forms and decide whether you require a hard copy as well.

You will find samples of all these documents in the toolkit.

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Covering letter This should tell prospective applicants what they will find in the pack, give the closing date for completed applications and the planned interview date, and give any other instructions such as whether or not Curriculum Vitae (CVs) will be accepted. You should consider whether you include information about any restrictions, such as justified age limits (see Section 2 Act lawfully) or poor access for people with wheelchairs. If you do not intend to acknowledge every application, say so here.

Job description Include in this: • job title • function • salary • hours (these may be subject to agreement) • responsible to/responsible for (line management) • location • other main conditions • duration of contract • duties, as above

Person specification What is essential? What is desirable?

• education/training/qualifications (Make sure your requirements do not inadvertently discriminate on grounds of age) • experience (nature and quality of experience is more important than length of experience) • skills  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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• values and attitudes How and when will you assess each item (e.g. application form, interview, references, certificates)?

Application form Give this thought. Design your form so that you encourage applicants to give you relevant information which will aid your selection. Make sure all questions relate to the person specification and the job description. Do not ask for things you don’t need, such as family circumstances, age, or a driving licence (unless it’s a driving job). Try not to imply that length of experience is more important than quality of experience.

You should include information about any evidence that you will require at a later stage about, for instance, criminal record check, right to work in the UK, health record or qualifications and you should explain how their application will be dealt with in line with Equality and Data Protection Act requirements.

You will need to give particular thought to how you handle: • Equalities monitoring information (see section on Data Protection and the notes on the sample Equalities Monitoring form).

• Eliciting the information you want, in particular how to obtain evidence of abilities and experience, not just bland unproven assertions. Directed questions may help (e.g. ‘Please tell us what experience you have of …’ ‘Give examples of how you have ...’).

• Questions about criminal convictions (see section on Criminal Records in the ‘Act Lawfully’ section and the sample application form and self declaration form in the Supplementary Material).

• Questions about age, especially if you have a justifiable policy of not employing people below a certain age or people of retirement age. Note: The default  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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retirement age was abolished in April 2011. Organisations will need to be able to justify their retirement age, if they want to keep it.

• Questions which could give rise to intentional or unintentional discrimination, or are culture specific, such as educational background/qualifications or conversely, questions which can be inclusive, such as unpaid work experience.

• Questions which carry an implied weighting in favour of a particular age group, either in terms of length of experience or openness to new ideas and skills.

• What you ask for in terms of references (see section 5(a) on ‘Pre-empting problems’).

• Questions about whether the person has a disability or a health issue which prevents them doing an intrinsic part of the job.

Note that the Equality Act 2010 does not allow you to ask health and disability questions on an application form or reference before making a (conditional) offer except to: •

find out whether someone can do the intrinsic (i.e. important) parts of the job

• find out if you need to make adjustments to the interview process • monitor diversity in the recruitment process

Guidance on completing the application form In many cases it will be helpful to include a separate sheet of instructions to assist candidates to tell you what you want to know in the way you want them to do it. Make sure you give clear instructions e.g. black ink, use of extra pages, envelope marked ‘Confidential’, closing date and time, whether you want/will accept supporting information and so on. Stress that you will shortlist and interview only on the basis of evidence provided in the application form. This is especially important if you have internal applicants who may assume that you will rely on your previous knowledge of their work.

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Background information about your organisation/company The more an applicant knows about what you do, the better able they will be to judge whether they want to be part of your enterprise. Good background information will help applicants self-select; it will also enable those who do apply to include relevant and helpful information about what they could bring to the job. Remember, yet again, that you are selling your organisation.

You will need to include information about: • your equality and diversity principles (a statement will suffice - you probably don’t need to send the whole policy at this stage) and your equalities monitoring policy, if you have one • where you are based and where you operate • your organisation’s purpose and activities • your organisational structure and staffing • your funding

Application form/entrance tests Some companies, especially those who regularly recruit large numbers of staff, include preliminary screening tests in the application process. Some professions, such as the Civil Service or the police force, require candidates to sit entrance tests as a preliminary sifting mechanism. Others, such as Pizza Hut and ASDA supermarket, have pre-application forms to fill in on the internet or in-store and which may include simple tests. These could include multiple choice questions around workplace scenarios, simple maths calculations or possibly basic psychometric tests. If you choose to do this you need to ensure that tests are relevant, clearly understood and fairly applied in controlled circumstances.

If you use psychometric tests, either at this stage or later in the application process, you need to ensure that these are supervised and assessed by qualified practitioners. This is a requirement of the Data Protection Act. You need to be convinced that the tests are meaningful and free of cultural or other potentially discriminatory bias.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Tests at interview are considered in the next section.

d)

Advertising the post

Focused and effective advertising is crucial, both in terms of attracting the best people to apply for your job and in terms of publicising your organisation/company. Budgetary considerations will be a major influence on your decision making - wherever you advertise, it is likely to cost you money, often a considerable amount, so it is important that your advertising reaches - and appeals to - the people you want to apply. If you are advertising in newspapers or newsletters, you need to be sure the publication dates fit with your timetable.

The internet is an ever-expanding means of advertising vacancies – this, probably in combination with newspaper ads, is now likely to be your best platform. If you have a website on which you post your application pack, make sure it is complete and that it works.

It is now obligatory to advertise posts for 4 weeks in Jobcentre Plus offices before you advertise abroad. Please look at the information on the Resident Labour Market Test in the ‘Right to Work in the UK’ section.

Possible advertising outlets to consider are: •

local, regional, national and ‘ethnic’ newspapers

•

local authority job sheets

•

Trade/specialist newsletters/sector newsletters and mailings (e.g. CVS

mailings) •

jobcentre Plus/Recruitment agencies

•

local radio/television

•

internet

•

existing networks, both formal and informal, including internal advertising

and word of mouth  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Checklist Essential information to include: • name of employer • location • pay/hours • essential qualifications • nature of the job • if applicable, whether there is an Occupational Requirement (discussed in the next section) • how to apply • closing date Be careful to avoid potentially discriminatory language or requirements. Attracting candidates to your organisation is discussed in more detail in sections ‘Positively seek diversity’ and ‘Promote your organisation/company’.

e)

Prior visits to the workplace

You should decide whether you will encourage or allow prospective candidates to visit your workplace at any stage prior to interview. Some people like to visit before they apply for a job; others ask if they can visit once they are shortlisted. You may build a workplace tour into your interview process. There are pros and cons to allowing visits - they are time-consuming for staff who show people around and there is a danger of unfairly pre-judging candidates.

However, they also allow prospective candidates to make an informed decision about whether they want to proceed with an application and can make the interview process more focused.

If you decide to allow this, you should be consistent in your approach. Let all candidates know that they are welcome to look around and make it clear whether or not this is part of the assessment process. If it is, the selection panel must decide how information will be recorded, evaluated and weighted. If not, visits should if possible be conducted by staff not involved in  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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the selection process who are briefed about how to provide appropriate information without making prejudicial comments to or about the candidate.

f)

Shortlisting

In order to be fair and objective, shortlist on the basis of evidence provided in the application form and on nothing else. Make it absolutely clear in the application form itself and in the supporting instructions that this is what you will do. Evidence requested in the application form should relate only to the person specification and the job description.

Exactly how you go about shortlisting will depend on your own situation, such as whether you have a very large (or very small) number of applicants, how many people are on your selection panel, whether you have urgent time constraints and so on. However some principles apply regardless of the above.

Checklist • Maintain confidentiality.

• Leave enough time for each member of the selection panel to receive, read and if possible score applications before you meet to discuss your selection.

• Ensure everyone understands the scoring system and can apply it consistently.

• Score on the basis of evidence only.

• Record your reasons for selection decisions and keep any score sheets.

• Don’t feel obliged to interview unless you have candidates who meet all the essential criteria and stand a realistic prospect of being able to do the job. i. You may wish to consider long listing.

Possibilities include: a) Practical testing. For instance, applicants for an administrative assistant post might be asked to come in to perform a half hour test which included alphabetical filing, proofing short pieces of text for spelling or typing mistakes, or following a set of  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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instructions to collate a document. This can be useful if you have a very high number of applicants with similar paper qualifications. b) Telephone interviewing. May be appropriate in some circumstances, especially if there are applicants from far away, but difficult to monitor for fairness and objectivity. c) Initial sifting of applications to discard any that don’t meet any or all of the essential requirements on the person specification. This can be done by one or two people but should be checked on a random sample basis by other members of a selection panel.

Remember that if psychometric tests are used at this or any other stage, it is a requirement of the Data Protection Act that the tests are applied and assessed by people properly qualified to do so. They should only be used as one part of a more comprehensive evaluation process. ii. Final shortlisting should be carried out by the selection panel on the basis of scoring to an agreed system and discussing the outcomes.

The agreed system of scoring will depend on your own situation. However, whatever system you use, you should ensure that each application is objectively scored against the criteria in the person specification and that candidates are informed that this will happen. Records should be kept in case of future challenge (see section on Data Protection). Possible models include: a)

a yes/no tick box for each of the essential criteria – only candidates who get a full row of ticks will be shortlisted. This is a blunt tool, though a logical one, and may result equally in yielding too many or too few candidates to interview, since there is no way of differentiating quality of response.

b)

scoring each candidate for each criterion on a scale of, say, 0 - 5. This has the advantage of allowing degrees of competence and evidence, but may mean you end up interviewing someone who doesn’t strictly meet all the criteria. You may find on this model that individual selector’s scores differ widely from each other – some people will  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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always tend to give generally higher scores than others. This does not matter - the important thing is that each person is consistent in how they allocate scores. Usually you will find that the final rank order is similar even if the raw scores are very different.

Checklist • Decide in advance the maximum number of people you are able to interview.

• Stick to the criteria you decided were essential – don’t be sidetracked by other considerations.

• Agree what you will do about reserves if any of your shortlisted candidates drop out before interview.

• Agree interview timings and content, including questions, tests, presentations.

• Allocate remaining tasks such as writing to shortlisted candidates, setting up tests, preparing interviewers’ paperwork etc.

NB. If you have no strong enough candidates, don’t feel obliged to interview. Only interview candidates who meet the essential criteria and have a realistic chance of being able to do the job.

There are sample score sheets in the ‘Shortlisting’ section at the end of this toolkit.

Will you email candidates who have not been shortlisted telling them this (particularly those who e mailed their applications)? Would you be willing to give candidates feedback on why they were not shortlisted?

g)

Interviewing

Interviews should establish which candidate, if any, is best able to perform the job description by exploring who best meets the requirements of the person specification. For this reason, questions and tests must be relevant to the job, consistently applied and fairly assessed. Make  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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sure that your interview process is appropriate, accessible and as sensitive as possible to the diverse needs of potential applicants – see section on ‘Positively Seek Diversity’ for suggestions about how you might do this.

From the candidate’s perspective, being interviewed is always stressful and challenging. You will enable a candidate to show themselves at their best if they are put at their ease, told what will happen and why. An encouraging and affirming atmosphere will help everyone; ‘tricks’ and hidden agendas, actual or perceived, will not.

Before the interview Interview timetables must be planned.

• Take account of distance – try to see those who live the closest first.

• Try to timetable interviews so that candidates do not meet or overhear each other.

• Inform all necessary staff of the timetable but keep information about identities confidential to those who need to know.

Letters inviting shortlisted candidates to interview should include information about: • Time and place of interview, with directions and any arrangements for people with disabilities.

• Who will be on the interviewing panel.

• How long the interview will take and what format it will have – include information about any informal opportunities to meet staff/look around before the interview, and about any tests or presentations.

• Anything they need to bring with them, such as certificates, examples of past work, declaration of criminal convictions (we suggest you include a criminal conviction declaration form with the invitation letter – see sample form in the Supplementary Material).

• Whether they can claim travel expenses.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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• How the candidate should confirm that they will be attending.

PERS would discourage taking up references before the interview, particularly as the Equality Act now limits the questions you can ask about health and disability before you have made a conditional job offer. References are discussed in more detail in the sections on ‘Anti Discrimination Law’, ‘Data Protection’ and ‘Pre-empt Problems’.

The interview Occasionally it may be appropriate to hold interviews with only one interviewer, but this will be rare. It is good practice to have at least two interviewers to ensure fairness, three if possible. A panel of five or more can be unwieldy and intimidating for the candidate. If you have non-voting observers present (for instance, to monitor your equality and diversity practice) make their role is clear to everyone including the candidates. In some cases you may be able to consider interviewing by video link. The following points apply regardless of how many people you have on your panel or the method you choose.

Checklist • Arrange room so that the candidate will not feel intimidated or disadvantaged, with the light behind them, an appropriate comfortable chair of the same height as the ones used by the interviewers, a drink of water and tissues available, a clock which is visible to all.

• Set up and test any equipment such as PowerPoint projection, flip chart pens.

• Ensure all interviewers have necessary paperwork – questions, scoresheets, interview timetables, application forms, pens.

• Ensure all interviewers arrive early, understand scoring system, know what questions they are to ask (and not ask!).

• Appoint a panel chair and timekeeper.

• Welcome candidates and introduce panel (they should already know who they  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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will be from the letter of invitation to interview).

• Be aware that some people (for instance, young people, women returners, long term unemployed people, people who have previously always worked from home, internal candidates, people who have experienced discrimination or ridicule in the past) will be particularly nervous – try to take account of these anxieties when assessing performance.

• Explain to candidates what you’re going to do – same questions to all, timekeeping, interviewers will take notes, emphasis on evidence (ask them to use examples where possible), time for questions.

• If you are going to disregard the application form after using it to shortlist make this very clear to the applicants at the start of each interview. PERS does not recommend this.

• Take notes of candidates’ responses so that you have a basis for discussion at the end of the interviews. Do not write down flippant or derogatory comments – remember candidates have a right to request access to interview notes under the Data Protection Act. Remember too that your interview notes will form part of your evidence of a fair and objective process if your decision is challenged under discrimination law.

• Consider what information you need to give to the candidate, e.g. about long term prospects of the role, job security, impending changes in the organisation, pay policy.

• Don’t be - or appear – distracted.

• Interact with the candidate - smile! (but don’t try to be their new best friend…)

• Give candidates a chance to ask questions or add anything they feel they haven’t said.

• Collect or copy any paperwork/documents you have asked them to bring.

• Give them a travel/expenses claim form, if appropriate.

• Thank candidates and tell them how and when they will be notified of the outcome.

• Take breaks if necessary.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Interview questions • Questions should be based on the job description and the person specification.

• They should be of a complexity and depth appropriate to the job.

• Ask everyone the same questions, but don’t be afraid to ask ‘follow up’ questions to probe or encourage. Use the ‘funnel’ approach – start with ‘open’ question and narrow down to supplementary, probing questions followed by ‘closed’ questions to check facts; if necessary, conclude by summarising/testing your understanding.

• Ask open questions referring to past performance/experience.

• Only ask one question at a time, not ‘multiples’.

• Underneath each question on the interviewers’ question sheet, give prompts which list the kind of answers you are looking for or issues you feel should be addressed in an answer.

• Consider how you will address issues such as commitment to equality and diversity principles, health record, ability to work overtime/unsocial hours before you begin.

• If an inappropriate or discriminatory question is asked, intentionally or inadvertently, apologise to the candidate and discount the answer. Inappropriate or discriminatory questions are ones which unnecessarily intrude into a person’s private/family life or unnecessarily seek to expose their personal circumstances or opinions/beliefs.

Options Consider giving candidates the interview questions 10 minutes before they come in to the interview.

There is a sample timetable, letter, list of model questions and scoresheet in the ‘Supplementary Material’ of this toolkit.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Tests Be clear about what you are and are not testing and inform candidates accordingly. For instance, you may be testing writing style but not handwriting; or presentational skills but not detailed subject knowledge; or subject knowledge but not presentational skills.

Areas you might wish to test depending on relevance to the job are: • numeracy, literacy, writing style, handwriting • speaking/presentational/ teaching skills • management, financial, technical skills • keyboard skills, software skills, analytical skills • prioritising, reading, listening, understanding, following instructions • interpersonal/communication skills • language skills or other specialist knowledge Checklist •

Be clear about what you are looking for in the test and why. Don’t ask

candidates to jump through unnecessary hurdles.

•

Ensure that tests do not discriminate against people unnecessarily in terms of

language, age or cultural background, or in terms of irrelevant physical abilities/impairments.

•

Ensure that people with ‘inside knowledge’ of your organisation /company are

not unfairly advantaged.

•

Test the test – ensure instructions are clear and that it can be completed in the

time given.

•

Provide all necessary tools: pen, rough paper, calculator, PC, reference

materials.

•

Brief the test administrator so that everyone gets the same help and the same

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•

Agree scoring system and record scores.

Presentations Asking the candidate to make a presentation may be appropriate for some jobs where some form of public speaking is part of the job. However it is important to be clear about what it is you are testing, and why, and not to ask for a presentation unless there is a clear job-related purpose. Choose the subject with care so that you do not give an unfair advantage to someone who knows your organisation better than other candidates. Decide whether you are going to ask candidates to prepare the topic in advance or give it to them unseen when they arrive for interview. In both cases, allow candidates adequate time to prepare; as far as possible allow each candidate the same time and resources.

Goldfish bowls/Role play Some interviews require candidates to undertake a group exercise to observe their interaction skills. Role plays are sometimes used to establish how a candidate responds to a simulated work situation. Both of these need careful planning and introduction if they are to be relevant to the job description and fair to all candidates. Above all, be clear about what it is you are testing.

h)

Making a decision

Deciding who to appoint It is unlikely that you will be able to make your decision simply on the basis of raw scores, although these will obviously be major factor in your decision making. It is important that each candidate is discussed by each of the interviewing panel and their strengths and weaknesses considered. Take into account scoring on the application form if this is helpful.

The Equality Act now allows you to use positive action where two candidates are equally qualified for a post – see below. Aim to reach a consensus – if one person is seriously unhappy with the decision it is unlikely to be a good appointment. Do not feel obliged to appoint. Experience has shown again and again that it is better for all concerned not to

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appoint and to repeat the selection process, however difficult that may be in the short term, rather than appoint someone who is not up to the job.

‘Positive action’ as defined in the Equality Act means that from April 2011 employers can choose to appoint candidates from under-represented groups provided that they are as qualified for the role as other applicants.

Thus in the unlikely event that two candidates are equally qualified in terms of their experience and skill set, you can now lawfully decide, for instance, to appoint a black man over a white man, a woman over a man, or homosexual man over a heterosexual man if the are less well represented at that level in your organisation.

It is not the same as filling quotas or giving someone a job just because they are a woman, disabled or from an ethnic minority regardless of their ability to do the job – that would be positive discrimination and is unlawful.

Checklist • Allow plenty of time to make the decision.

• Agree reserve candidates.

• Record the reasons for your decisions and keep these with your score sheets.

• Agree who will give feedback and what should be said.

• Check any documents that have been requested, e.g. criminal conviction statement.

• Confirm start salary and any other individual terms.

• Confirm any matters on which the offer is conditional e.g. references, health, certificates, Criminal Records Bureau check, eligibility to work in the UK. • If your decision is conditional on references at this stage, agree who will send for references and who will make a final decision once references are received.

The job offer  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Be prepared for your chosen candidate to request time to consider or, occasionally, to turn down the job. Be clear about what you will do in these situations.

When you make an initial offer, establish any conditions (satisfactory references, medical checks, work permits etc), negotiate a preferred start date, state your intended salary offer (and be clear whether or not this is negotiable) and request confirmation of acceptance in writing. Remember that your offer and their acceptance have contractual force even if they are not written down.

If your offer is conditional, you must make this clear and strongly discourage your applicant from resigning from their current job until the offer is confirmed.

Job offers should remain confidential until the offer and acceptance are confirmed, unless the new appointee gives you specific permission to publicise it.

Checklist Before confirming an appointment, you may need or wish to check the following: • eligibility to work in the UK (mandatory) • qualifications/certificates (may be mandatory in certain jobs) • Criminal Records Bureau clearance/Disclosure and Barring Service (mandatory in certain jobs) • unspent criminal convictions/police check • medical fitness/health • sickness/absence record • confirm previous employment history • satisfactory performance/conduct in previous employment • previous employer’s opinion of timekeeping/honesty/reliability/workplace relationships  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Whatever you decide to check, be clear why you need the information and what you will do with it once received – especially if it is negative. Remember that Data Protection law governs what information you may legitimately obtain and store. Where payment is involved (e.g. medical check-ups, police checks) you should be prepared to reimburse costs.

i)

Induction

Your new employee’s first few hours, days and weeks are likely to set the tone for their future employment relationship with you. You both need to be sure that you have made the right decision.

You also have responsibility for making your new employee feel safe and confident and equipping them to work effectively as soon as they can.

The probationary period is not mandatory and has no legal identity. However it is a useful device to signal a time during which the new employee is still learning and the organisation is still assessing their suitability and their training/development needs.

Checklist Induction ensure your new employee

• can follow health and safety procedures with immediate effect • understands the organisation/company’s goals and activities • gets to know the people they’ll be working with, both in-house and externally • can work effectively and in accordance with the organisation’s policies

Checklist Probationary period terms of employment might specify:

• six months probationary period (but this could be varied dependent on circumstances) • accelerated dismissal or resignation times within that period (e.g. a week’s notice instead of a month)

• clear process for reviewing progress and dealing with problems through regular supervision and target setting

• three month formal review and six month final review with pre-set agenda to look at  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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whether the job description is realistic and how well the post holder is fulfilling it

• formal reviews to include meetings with senior manager for new employee to comment on induction and/or report any problems

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2.

Act lawfully

a)

Anti-discrimination law

Anti-discrimination law has been consolidated in the Equality Act which came into force on 1st October 2010. It applies to discrimination on the grounds of the following ‘protected characteristics’: • sex (i.e. gender) • sexual orientation • race • religion and belief • disability • age • gender reassignment • marriage or civil partnership • pregnancy and maternity It also protects those perceived to have, or associated with people who have any one of those characteristics, i.e. carers of disabled people, partners, children.

An employer discriminates if they treat a person with one of the above characteristics less favourably than they would treat a comparable person who does not have that characteristic and they cannot justify that treatment on other grounds.

The law does not tell you precisely what you must do in order to avoid unlawful discrimination. However if someone claims that you have unlawfully discriminated against them, it is up to you, the employer, to prove that you have acted fairly and objectively and that your actions are justified. It is not up to the complainant to prove that you have discriminated; it is up to you to show that you have not.

Unlawful discrimination can either be direct or indirect.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Direct discrimination occurs when someone is treated differently because of their protected characteristic. If the answer to the question, ‘Had this person been of a different gender/race/religion/age etc., would the employer have treated them in the same way?’ is ‘No’, then direct discrimination is likely to have taken place. For instance, if a man is refused a job because he is gay, that is direct discrimination.

Indirect discrimination occurs when an employer applies a ‘provision, criteria or practice’ equally to all workers but this disproportionately disadvantages people with a particular protected characteristic. For instance, a blanket requirement for everyone to work particular shift patterns could disproportionately affect people with childcare responsibilities, a majority of whom are women; giving more favourable employment terms (such as longer holidays) to employees with longer service could disproportionately affect younger employees. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.

Disability discrimination is slightly different in that it is also unlawful to discriminate because of something arising from a disability although this can occasionally be justified.

For example, a disabled woman who requires the use of a wheelchair applies for a job. She can do the job, but the employer assumes the wheelchair will get in the way in the office.

He gives the job to a person who is less suitable for the job but who does not use a wheelchair. The employer has therefore treated the woman less favourably than the other person because he did not give her the job. This is discrimination arising from the disability (because of the wheel chair which she needs as she is disabled). If the employer could not justify his treatment of the disabled woman (and it would be very unlikely that he could), he would have unlawfully discriminated against her.

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Equality law allows you to treat a disabled person better – or more favourably – than a nondisabled person. This recognises that disabled people face a lot of barriers to participating in work and other activities.

Additionally, under the Equality Act employers have a duty to implement reasonable adjustments for disabled people. For instance, a woman applies for a job in an office. It includes typing and she is the best applicant except for her typing speed, which is slow due to a repetitive strain injury. This can be overcome if she uses an adapted keyboard. A reasonable adjustment by the employer would be to provide an adapted keyboard. If the employer did not employ her and provide the adjustment, he would be unlawfully discriminating.

Anti-discrimination law makes it unlawful for an employer to discriminate against a worker on any of the above grounds at any stage of applying for a job. This includes: • job descriptions/person specifications • advertising • application forms • interview arrangements • proficiency tests

Job descriptions/person specifications Ensure these only contain requirements which are relevant to the duties. Otherwise, an applicant may be discouraged from applying because, for instance, they have a disability or because they do not speak English as their mother-tongue and be indirectly discriminated against. Avoid specifying required length of experience which may unnecessarily exclude younger applicants, e.g. ‘should have minimum of 5 years’ experience’ or older applicants, e.g. ‘would suit recent graduate’ or asking for qualities associated with a particular age group such as ‘dynamic and energetic’ or ‘reflective, with boardroom presence’.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Advertising Do not advertise for people of a particular characteristic, such as sex, race, age, religion or sexual orientation unless the job is exempt under the ‘Occupational Requirement’ (OR) regulations. Avoid ageist language such as ‘mature’, ‘young’, ‘dynamic’ or ‘possessing gravitas’.

‘Occupational Requirements’ can only be used in very limited circumstances where a worker with a protected characteristic is essential (not just preferred), for instance ‘in order to preserve privacy and decency’ or for authenticity.

Under the Equality Act you may advertise for a person of specified gender in a single sex establishment or where workers are required to live in single sex accommodation or to ‘promote personal welfare or educational services’. The employer must be able to show that the requirement is essential and that there are no existing employees who are already capable of carrying out the required work between them. Occupational requirements might apply, for instance, to care workers in a home for elderly women, in a women’s refuge or for the purposes of authenticity in a modeling job or dramatic production. You may, for instance, advertise for a man to play the part of Father Christmas. However there is no exhaustive list of ‘Occupational Requirements’ situations. The only way you will know for sure if you were justified in making this stipulation is if you make it and are then challenged in court by someone who feels they have been unjustifiably discriminated against. In that case it is up to you, the employer, to prove that the ‘Occupational Requirement’ applies to the job concerned.

There is some guidance on ‘Occupational Requirements’ on the Equality and Human Rights Commission website, www.equalityhumanrights.com. From the Home page search for ‘Occupational Requirements’.

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‘Occupational Requirements’ might apply to: • work where particular race is required for the job, such as for authenticity in certain roles in plays or films (for example the part of Martin Luther King) • providing personal welfare services to people of a particular racial group which are best provided by a person from that racial group • providing personal services e.g. in changing rooms where modesty is an issue • e.g. in the Islamic faith a halal butcher must be a Muslim • an organisation advertising and promoting lesbian and gay rights may feel its credibility would be enhanced with a gay or lesbian person as their ‘public figurehead’ • advertising for people of a particular age or age group Advertising a post with an ‘Occupational Requirement’ can be ‘objectively justified’ in only very limited circumstances and where there is no other non-discriminatory ‘proportionate means’ of achieving a ‘legitimate business objective’, perhaps providing genuine training posts for school leavers to offset high unemployment in this group (but others new to the labour market might object.)

In all the above, you would have to provide evidence to justify your actions if challenged.

Positive action It is important to draw a distinction between positive action and positive discrimination.

Positive action is where action is taken to assist members of a particular group to gain employment e.g. by providing training. However, positive discrimination is where members of a particular group are given preference over others for no other reason than their belonging to that group. The Equality Act does not permit positive discrimination. However, under the Act if at any time in the previous 12 months there were no persons of a particular protected characteristic doing particular work within an organisation’s workforce, it is lawful to provide  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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access to training or to encourage and help members of the under-represented group to undertake such work.

If positive action is justified, you may: • Include a statement positively encouraging applications from a particular section

of the community – for instance, ‘ABC welcomes applications from people with disabilities, who are under-represented in our workforce’.

• Require candidates to share the experiences of a particular section of the

community for instance ‘The successful applicant will have close personal experience of the issues facing lesbian mothers’ (but not: ‘The successful applicant will be a lesbian’ unless you can justify this).

• Where this is genuine feature of the post, require candidates to possess a

particular skill most commonly held by a particular section of the community, such as the ability to speak fluent Gujarati.

• Where 2 candidates are of identical merit in all respects, in particular skills and

experience, you may tie-break by choosing the one who belongs to a group that is less well represented at that level in your organisation.

• It is permissible to make special arrangements to enable the employment of

disabled people.

Shortlisting and interviews Ensure that shortlisting and interviews are fair, objective and non-discriminatory. Ensure that as far as possible interview rooms are accessible and that you find out if applicants have any special needs and make appropriate adjustments.

Do not refuse to give a job to the best applicant because she is pregnant or because you fear she may become pregnant in the near future. Do not make assumptions about the reliability or commitment of people with caring responsibilities, whether for children or other  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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dependents. Do not make decisions based on preconceptions about a person’s age-related abilities or aptitudes.

Use the ‘positive action’ tie-break in your decision making only in a situation where candidates are of equal merit.

Make sure you record the reasons for appointing the successful applicant and that you can objectively justify those reasons.

Proficiency tests Only use tests which are necessary and relevant to the duties of the job, e.g. an applicant with a bad stammer when under stress might perform badly in an oral test. Give this person more time to complete the test, or replace it with a written test if this type of oral communication is not relevant to the job. Conversely, people with dyslexia may be unfairly disadvantaged by written tests if writing ability is not essential to the job.

Be aware that commercially produced tests such as psychometric testing may not have been developed with disabled candidates or those who do not speak English as a first language in mind, and will therefore have an inherent bias against some candidates. They may also have a gender bias. Be careful when using this type of test.

References Giving someone a bad reference because they complained about discrimination (of themselves or someone else) is victimisation under the Equality Act, and withdrawing a job offer because of such a reference without trying to find out the applicant’s view could mean that your organisation is also victimising the applicant.

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b)

Immigration law

Under immigration law, it is a criminal offence for you to employ someone who does not have the right to work in the UK or the right to do the work that you are offering. The penalty for an employer who does this can be up to £20,000 per employee. In addition employers will be subject to a criminal offence if they knowingly employ illegal migrant workers, which could result in employers being imprisoned for up to two years and/or receiving a fine.

However the law also lays down ways in which you can cover yourself against such an eventuality by telling you what original documents you must request and then prove you have seen, copied and retained, before employing an individual. This is known as a ‘statutory defence’. You must check these documents before a person begins work for you. You should photocopy the relevant sections of the document and record the date that you did this. (You can also scan documents if you have the appropriate equipment or software.) You need to ensure that all personal details are stored confidentially in order to comply with the Data Protection Act. Relevant sections of the original documents are: • the front cover and all of the pages which give your potential employee's personal details. In particular, you should copy the page with the photograph and the page which shows his or her signature; and • any appropriate page containing a United Kingdom Government stamp or endorsement that permits your potential employee to do the type of work you are offering Employers must also conduct further checks on some employees – see below – at specified intervals, to ensure the employee’s on-going entitlement to work in the UK. It is no longer acceptable just to ask for a National Insurance number. You now have to check original documentation. If a person supplies an original document or documents from List  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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A*, this will establish an excuse or ‘a ‘statutory defence’ for the duration of their employment. Documents from List B* provide an exemption from liability for the employee’s permitted period of residency only and should be checked.

Workers from outside the European Economic Area or Switzerland that have been granted permission to stay in the UK for more than 6 months on or after 1 December 2012, must apply for a biometric residence permit.

Biometric residence permits are replacing older forms of documentation and the new format is helping employers and other bodies to check the immigration status and entitlements of foreign nationals. They are both simpler to understand and are more convenient for foreign nationals living in the UK to use. The application process also enables the agency to check a person against both Home office records and police fingerprint records.

Most people will be able to prove their right to work in the UK by showing their passport.

The full lists of acceptable documents, with explanations of which is which, are provided in the ‘Supplementary Material’ section.

Arrangements for existing employees You do not need to apply the new document checks to any of your current employees taken on before 30 April 2004. In most cases you should have already obtained evidence for them under the previous arrangements.

Avoiding racial discrimination Under the Equality Act 2010 it is unlawful for an employer to discriminate on grounds of race, colour, ethnic or national origin or nationality. If you refuse to consider anyone who looks or sounds foreign, this is likely to be unlawful discrimination.

Equally, if you carry out checks only on potential employees who by their appearance or accent seem to you to be other than British this too may constitute unlawful racial discrimination.

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The best way to ensure that you do not discriminate is to treat all applicants the same way at each stage of the recruitment process. You may ask for a document at any stage - but if you ask for a document from one applicant make sure that you ask for a document from all applicants being considered at that stage.

It is perfectly satisfactory to ask for a document only from the person chosen to fill the vacancy if that is most administratively convenient. You may also ask applicants when they fill out an application form whether they would be able to produce the specified documents if selected for the job.

Remember that the population of the United Kingdom is ethnically diverse. Most people from ethnic minorities are British citizens. Many were born here. Most non-British citizens from the ethnic minorities are entitled to work here.

Which documents should I ask for?

Depending on their circumstances, prospective employees will need to show you original documents from List A (for those with permanent right to work in the UK) or List B (for those with temporary right to work in the UK).You should ask all potential employees to show you either one of the documents listed in List A, or one documents specified in List B. The latter has two groups. Group 1 documents require a re-check when the employee’s permission expires and Group 2 documents require checking after 6 months with the home Office Checking Service. You should only accept original documents.

These lists are given in the ‘Supplementary material’ section in a format that you may wish to use when requesting documents from prospective employees.

Further information You can download detailed copies of the Code of Practice from the Border Agency (previously the Immigration and Nationality Directory) at the Home Office: www.ukba.homeoffice.gov.uk Follow links to ‘Business and sponsors’, then ‘Preventing Illegal Working’ and finally, on the right of the page under ‘See also’, to ‘Guidance for  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Employers’. The web site also has addresses & contact telephone numbers for the 4 regional Public Enquiry Offices.

UKBA employers’ helpline: 0300 1234699 UKBA website: http://www.ukba.homeoffice.gov.uk/ Who has permission to work in the UK? In most cases you will not need to know the details of immigration law to find out if you can legally employ a particular worker – it will be enough to see their passport or other documentation as above to check that they have the right to work.

However, in some cases the onus is on the employer to register a foreign worker for employment and in some cases the employer must make the application for the worker to enter the UK before they start the job. For this reason, it can sometimes be important to have a grasp of who may and may not obtain work legally and when you need to take action yourself. The rules are very complicated and are different depending on the country of origin of the worker, on the type of work you have to offer and on government imposed limits that may apply at any particular time. The notes below are a brief summary but are by no means comprehensive – if you think your worker or the job you are offering might fall into any of these categories, do consult the websites quoted or obtain further expert advice.

It is important to realise that there are a range of routes into obtaining a visa and/or a work permit, and it may be that a person will have one but not the other. People joining family in the UK will also be subject to different visa and work permit requirements.

The guiding principle is that you understand and apply the requirements for checking documentation and in case of doubt, take advice as necessary.

Workers who normally have an automatic right to work in the UK Most members of the European Economic Area (EEA) which consists of the EU states and Iceland, Liechtenstein and Norway are free to enter and live in the UK and to obtain work here.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Some Commonwealth citizens may have the right to work here if they have a grandparent who was born in the UK, although they must first go through an application process.

Refugees have the right to live and work in the UK but the situation is not as straightforward

as it was. In the past they were given indefinite leave to remain, but since August 2005 refugees have been given 5 years leave to remain, after which they may apply for an extension. A refugee may have ‘Refugee status’, which means they have had a positive decision on their claim for asylum under the Refugee Convention and have been granted leave to remain in the UK or they may have qualified for ‘Humanitarian Protection’ (granted for 5 years) or they may have been given ‘Discretionary Leave to Remain’ (granted for up to 3 years).

Some refugees will not have their documents because they have had to send their original documents to the Home Office to support an application for an extension of their leave to remain. Employers in these circumstances should complete the Employer Checking Service (ECS) form (available on the UKBA website at www.ukba.homeoffice.gov.uk and search for ‘Employer Checking Service’) and return it to the ECS. It is also available on line here, https://www.gov.uk/employee-immigration-employment-status. If the result of the check is that there is an application outstanding, it will clarify that your employee or potential employee has the right to work at the point of recruitment, and this entitlement can continue until a conclusive decision has been made. The ECS will advise if any other documentation is required to be copied and retained by the employer.

If the applicant is recruited following an ECS response, you will still be required to check the relevant original documents at the earliest opportunity Asylum seekers are people who have applied for refugee status and are awaiting a decision.

If they have the right to work, this will be stamped on their ‘Application Registration Card’ (ARC). They should also have a completed Employer Checking Service form (ECS) to  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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confirm that the holder still has permission to work. Follow-up checks from the ECS are recommended every 12 months.

Employers have the same obligation to check documentation from List A or List B stating the terms of the holder’s right to work as they do for any other prospective employee.

Further information Refugee council: http://www.refugeecouncil.org.uk/ Look out for their helpful guides and practical advice UKBA employers’ helpline: 0300 123 4699 UKBA Employer Checking Service (ECS) fax: 0114 207 5860 (to have the Service check the ECS form provided for asylum seekers or refugees seeking an extension) UKBA website: www.ukba.homeoffice.gov.uk/ and search for Employers Checking Service.

Accession State Worker Registration Scheme (A8 workers) Citizens of Czech Republic, Estonia, Lithuania, Latvia, Hungary, Poland, Slovakia, and Slovenia can live and work in the UK under the same rules as other citizens of other EU member states. This list includes Bulgarians and Romanians now too.

Workers from outside the EEA Points Based System/ resident labour market test For residents of countries who are not in the EEA or Switzerland, there are requirements to obtain permission to work in the UK. This is known as the ‘points based system’, by which applicants are scored against a number of criteria relating to skills, qualifications and future earning power and current job shortages in order to ensure that migrants from outside Europe have the skills we need. The points based system was introduced in February 2008 and has undergone various revisions. It is highly complex. There is an employer’s helpline on 0300 123 4699.

Additionally, a 'resident labour market test' ensures that jobs are advertised to workers in the United Kingdom before they can be offered to migrant workers. From April 2009, employers are required to advertise jobs more widely, thus preventing them from offering  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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skilled jobs to overseas workers unless workers living in the United Kingdom have had a chance to apply for them first. Since December 2009, the test requires employers to advertise these jobs in Jobcentre Plus offices for up to four weeks, as well as advertising them by another method set out in the codes of practice for their industrial sector.

The test is part of the points-based system and covers skilled jobs such as primary school teachers, some nurses, architects, farm managers and hotel managers, among others. An employer must take the test before they are issued with a Tier 2 (General) Certificate of Sponsorship to recruit a migrant worker through the points-based system, unless the vacancy is included on the ‘shortage occupation list’.

A slightly new system will take effect from 1 April 2011. Under this system, employers will have to apply for a certificate of sponsorship from the UK Border Agency for a specific post if they wish to bring someone to the UK. The government has also announced that employers filling a vacancy that attracts a salary of £150,000 or more will not be subject to the limit on the number of certificate of sponsorship that may be allocated.

Thus, applicants must usually first obtain a job offer from a sponsor who will apply on their behalf. Depending on whether the monthly visa quota has been met or not, the applicant will then be judged according to their status and that of their prospective employer. Employers are licensed on the Register of Sponsors as either A rated or B rated (a transitional rating for an employer under a sponsorship action plan).

The system, has a five-tier framework: • Tier 1: Exceptional talent (closed to new applicants on 6th April 2015.)

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• Tier 3: Limited numbers of low-skilled workers needed to fill temporary labour shortages. This category is currently suspended.

• Tier 4: Students.

• Tier 5: Youth mobility and temporary workers Current Tier 1 workers must either • •

apply for indefinite leave to remain if they have already accrued 5 years in the UK; or switch into another, qualifying tier, subject to the eligibility requirements.

Tiers 3 and 5 are temporary routes - people in them will not be able to switch out of them once they are in the United Kingdom. Those in tiers 2 and 4 will be eligible to switch between these tiers subject to meeting the requirements of the tier they wish to switch to.

In tier 2, points will also be awarded for attributes such as age, previous salary or prospective salary, and qualifications. This route could lead to settlement, if settlement requirements are met at the time of that application.

Since February 2008 employers and colleges have needed a license in order to sponsor migrants for visa applications. All applicants in tiers 2-5 will need to provide a certificate of sponsorship from a licensed sponsor. To earn and hold a licence, employers/colleges must agree to certain duties.

Further information This system is highly complex and changes from month to month. For more information on procedures and obligations for registering; eligibility; applying for a license; and sponsorship duties, see www.ukba.homeoffice.gov.uk and follow the links to ‘Businesses and Sponsors’.

Students from Abroad

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Students who have permission to study in the UK for 6 months or more (usually under the Tier 4 of the points based system) are usually entitled to work part-time (up to 20 hours a week) in term time and full time in vacations without obtaining specific permission to work.

There are some limitations on the kind of work and students should not usually depend on the income from work in order to be able maintain themselves.

Students from abroad are allowed to do work placements or work required for sandwich courses.

Students from abroad who have permission to study for less than 6 months will usually (though not always) have a prohibition on working.

How does an employer establish a foreign student’s right to work during their studies?

If a student has a passport sticker or identity card that does not prohibit work, they are allowed to take employment as above without getting any further approval or permission.

This is explained in a UK Government leaflet available on the British Council website, www.britishcouncil.org/eumd-immigration.htm, called ‘Find out about working in the UK during your studies’. The UK Council for International Student Affairs (www.ukcisa.org.uk) also has useful information.

What should a student visa or passport stamp or identity card state about work?

If a student is in the UK with student immigration permission, check if their passport sticker (entry clearance or residence permit) or identity card states: ‘Restricted work, p/t term time, f/t vacations’ or ‘Restricted work in term-time’ or ‘Work (and any changes) must be authorised’ or ‘Able to work as authorised by the Secretary of State’. If either their passport sticker or identity card says any of these things, they are allowed to work during their studies.

Alternatively, you can ring the Border Agency’s Employers’ helpline on 0300 123 4699 or use the Employers’ Checking Service on the Border Agency website

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(www.ukba.homeoffice.gov.uk, following links for ‘Businesses and Sponsors’ and ‘Preventing Illegal Working’) and fax the completed form to the ECS at 0114 207 5860.

Young workers School children and young workers aged between 16 and 18 are restricted in the kinds of work they are allowed to do irrespective of nationality/country of origin. Employers are required to seek permission to employ children below school leaving age. See PERS factsheet ‘Employment of Young People’ at www.pers.org.uk, ‘Publications’, for more information.

c)

Data Protection Act

You are unlikely to contravene data protection legislation if you follow a fair, open and consistent selection policy. Most of the requirements of the Data Protection Act build on principles of good practice as outlined in the recommended procedures above.

Under the Data Protection Act 1998, there are 8 data protection principles. These stipulate that personal information must be: 1. processed fairly and lawfully 2. processed for limited purposes and not in any manner incompatible with those purposes 3. adequate, relevant and not excessive 4. accurate 5. not kept for longer than is necessary 6. processed in line with data subjects’ rights 7. secure 8. not transferred to countries that don’t protect personal data adequately

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The Act relates to personal data such as completed application forms; details of a worker’s salary and bank account; emails about incidents involving named workers; and notes made about named individuals in a file or notebook. It does not relate to policy documents and reports from which no individual can be identified or to random manual notes stored in an unorganised way.

Sensitive personal data includes information about an individual’s racial or ethnic origin; political opinions; religious or other beliefs; trade union membership; physical or mental health; sexual life; commission or alleged commission of an offence, or proceedings connected with such an offence. Such information might be stored, for instance, in sickness records, in information about required workplace adaptations, in ethnic monitoring forms, or in payroll deduction instructions.

The Information Commissioner has published a Code of Practice dealing with Recruitment and Selection procedures, which covers employees, job applicants, agency workers, casual workers and contract workers. A very helpful summary can be found in the downloadable booklet ‘A Quick Guide to the Employment Practices Code: Ideal for Small Businesses’, see www.ico.gov.uk and search for ‘Employment Practices Code’.

Further information can be found at www.ico.gov.uk (follow links through ‘What we Cover’, ‘Guide to Data Protection’.

The data controller The Act requires any organisation to have a ‘Data Controller’ with legal accountability for data protection. In the case of limited companies or public organisations, the company or organisation itself is the Data Controller; in the case of sole traders and partnerships, the Data Controller is the owner. Organisations may allocate responsibility for data protection to individuals but this does not make them legally liable as Data Controllers. The Code of Practice on Employment Records says that: ‘Data protection compliance should be seen as an  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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integral part of employment practice. It is important to develop a culture in which respect for private life, data protection, security and confidentiality of personal data are seen as the norm.’ This compliance is a requirement for all managers and employees.

The Employment Practices Data Protection code – Recruitment & Selection (use your search engine to find a copy) The Code gives benchmarks for each aspect of the selection process, including advertising, applications, verification, shortlisting, interviews, vetting, and retention of records. It covers sensitive personal data (such as that gathered for monitoring purposes), using the Disclosure and Barring Service and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.

These are the principal recommendations: Advertising Make sure individuals responding to job advertisements know the name of the organisation to which they are providing information and how it will be used. This is usually self-evident unless recruitment is being done by an agency on behalf of an employer.

Applications Make it clear who will receive the information given in a completed application form (or CV) and how this will be used: a) Only seek information which is relevant and proportionate to the recruitment decision to be made. Only request personal information at the point where it is needed. For instance, the information sought from applicants for a post as head of security at a bank will differ in its scope and nature to the information sought from applicants to work in the bank’s staff canteen. Bank account details which are needed if an applicant is successful in gaining employment are not needed on the initial application form. b) Only request information about a person’s criminal convictions if this is relevant to the job on offer, do not ask for information about spent convictions unless the  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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job is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974. (See further information in this section on declaring criminal convictions). c) Explain any checks that will be made to verify information provided on the application form, especially if information is to be gathered from additional sources such as contacting other previous employers or seeking confirmation of qualifications. d) Ensure any sensitive data, as defined above, is properly handled (see later in this section). e) Make sure that arrangements for receiving and storing completed applications are secure and confidential.

Verification Verification is the process of checking that details supplied by an applicant are accurate and complete. It includes the taking up of references and, where justified by the nature and requirements of the post in question, confirmation of qualifications or of financial information.

Applicants should be told how the information they give will be verified and, if necessary, asked to give signed consent for the release of information by a third party; this might occur, for instance, where confirmation of qualifications is sought from an educational establishment. If any of the verification checks carried out produce discrepancies, for instance if it appears that information given was incorrect or misleading, the applicant must be given opportunity to account for these differences.

It is unlawful to force applicants to obtain records from a third party to which they alone have the right of access, such as certain criminal and social security records, by making this a condition of their appointment.

Shortlisting

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The primary requirement is consistency in the collection and assessment of information used to shortlist. Additional requirements apply if you are using a solely automated system, such as answers provided through a touchtone response to psychometric questions posed by a computer, as the only means of shortlisting, where this is not balanced by taking other evaluative factors into account. Psychometric and other complex tests must be assessed by people properly qualified to do so.

Interviews Make sure that that any records you make and retain are relevant to, and necessary for, the selection process or for demonstrating that the process was fair if you are challenged.

Remember that applicants will normally have the right of access to interview notes made about them and retained as part of the selection process.

Pre-Employment Vetting This is intrusive enquiry into a person’s background and circumstances that goes beyond the verification process described above. For this reason it should only be used where applicants will be working in areas of special risk such as security, classified information, or the police or prison services.

Limited vetting, for instance under the Protection of Children Act 1999, may be a requirement of some jobs in order to protect vulnerable clients or customers. The Data Protection Act does not prohibit vetting in these circumstances but does regulate whether and how it is carried out: a) Vetting should only be carried out ‘where there are particular and significant risks to the employer, clients, customers or others, and where there is no less intrusive and reasonably practicable alternative.’ b) Comprehensive vetting should only be carried out on a successful applicant and not at any earlier stage in the selection process. c) Applicants must be told early on in the recruitment process that vetting will take  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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place and what this will entail. d) The extent and nature of information sought must be justified by the role in question. e) Sources of information gathering must be relevant and should not normally include an applicant’s family or close associates. f) Use reliable sources of information and allow the applicant to give their point of view. g) If information is collected about e.g. an applicant’s partner, they must be made aware of this. h) The applicant should give signed consent to the release of information by a third party.

Retention of recruitment records The Act does not lay down specific rules about retention of records but does stipulate that personal data shall not be kept for longer than is necessary for a particular purpose or purposes.

The principal justification for keeping recruitment records is to provide evidence in order for an organisation to defend itself against possible discrimination claims or other legal action.

However this does not justify the indefinite retention of all records; the Code recommends ‘a policy based on risk-analysis’. Where there is a legal requirement to retain records (as with Employment Agencies) these should be anonymised where possible.

The recommendations stipulate that: a) retention of recruitment records should be based on clear business need b) information obtained as part of a vetting exercise should be destroyed after no more than 6 months (unless there are specific reasons why you are legally obliged to keep it), although a note may be kept of the result of the vetting exercise c) information from a successful applicant in a completed application form should  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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be deleted if it is not relevant to an employee’s on-going employment d) information about criminal convictions should usually be deleted once verified by a DBS disclosure, although a note may be kept of the results of a check that was carried out e) you must inform unsuccessful applicants if their names and details are to be kept on file for possible future vacancies and give them the option to have their details removed if they do not wish to be reconsidered f)you must make sure that all personal data obtained during the recruitment process is securely stored or is destroyed Sensitive personal data (see above) may only be collected or stored where the processing is: a) ‘necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment’ – e.g. to ensure health and safety at work by selecting safe and competent workers, ensuring a safe working environment, avoiding unlawful discrimination, protecting personal data, protecting customers’ property and funds or checking immigration status before employment.’ b) ‘necessary for the purpose of, or in connection with, any legal proceedings’, or for the purpose of legal advice obtaining or establishing or defending legal rights (such as defending a claim against unlawful discrimination).

The processing of information about racial or ethnic origin, religious or other beliefs, physical or mental health, is only allowed if the information is ‘necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment’ and there must be safeguards for the data subject. Thus information used for purposes of equal opportunities monitoring should be anonymous or aggregated.

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Processing of sensitive personal information may also be justified for ‘the exercise of any functions conferred on a person …for the exercise of any function of… a government department’ (e.g. in the recruitment of police or prison officers).

Subjects of sensitive personal data must have given explicit consent to the processing of this information and the consent must be freely given. This means that permission for collection of any such information must be explicitly requested, explained and positively agreed to, e.g. by providing a signature, and there must be a real option for the person concerned (the subject) to decline to give consent without any consequent detriment.

References References given by employers are covered by the Data Protection Act. This applies not only to references given to other prospective employers but also to, for instance, character references supplied to a court or financial references given in connection with a worker’s mortgage application. References may be given in a corporate or in a personal capacity.

‘Corporate’ references are given on behalf of an employer by a member of staff and the employer carries liability for that reference. References given by a member of staff in a personal or individual capacity are not the responsibility of the employer even if they refer to work done for the employer.

The Data Protection Act has a specific exemption which means that a worker does not have a right under the Act to gain access to a confidential job reference from the organisation that has given it. However once the reference is in the hands of the organisation to whom it has been sent, the normal Data Protection rules apply, meaning that the worker has a right of access to the information provided it does not breach the right to confidentiality of another third party. This means that the receiving organisation may, for instance, conceal the name of the person who gave the reference.

The Code of Practice recommends that when receiving references, an employer should be aware that they may be required to respond to a request from the worker concerned to have  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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access to the reference. This should normally be granted under the terms of the Data Protection Act, but where the reference enables a third party to be identified, then a judgement should be made as to whether information should be withheld to protect the rights of that third party.

References are seen as part of a process of ‘verification’ that the information given to you by an applicant is accurate and true. The Code of Practice states that ‘Where information obtained from a third party differs from that provided by the applicant, it should not simply be assumed that it is the information provided by the applicant that is incorrect or misleading.

If necessary, further information should be sought and a reasoned decision taken as to where the truth lies.’

‘As part of this process the applicant should be asked to provide an explanation where information he or she has provided is suspected of being incorrect or misleading. This is necessary to ensure that the data held are accurate and processed fairly.’

The Data Protection Act states that you should ‘destroy information obtained by a vetting exercise as soon as possible, or in any case within 6 months. A record of the result of vetting or verification can be retained.’ References are seen as part of less stringent verification exercise, but presumably the same principle would apply.

When giving references the company should set out a clear policy about who can give corporate references and in what circumstances. Usually corporate references will be on headed paper and will show the job title of the writer. In the absence of evidence to the contrary, it will normally be assumed that workplace references are given on behalf of the employer.

The organisation’s policy about granting access to references should be clear and consistent.

An organisation may decide either to deny all access to references or it may decide on a policy of openness which allows workers to see and if necessary challenge inaccuracies or misleading statements that have been written about them.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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References given within an organisation, for instance where a worker is being considered for a transfer or a promotion, are not subject to the exemption. Access to such internal references should be treated in the same way as any access to any other information the employer keeps about the worker.

Confidential references should only be given at the express wish of the worker concerned and when an employee leaves employment, they should be asked whether or not they wish references to be provided to future employers or to others. Employers should take reasonable steps to ensure that requests for references are genuine and are not attempting to gain information about the worker by deception.

References should of course be true and accurate. Unfounded criticism could be challenged for being defamatory. ‘Live’ disciplinary offences or competency proceedings may be detailed but normally not those which are spent or unproven, though you might be able to say, for instance, that a disciplinary matter was being investigated but was not completed because the person resigned first. Case law suggests that employers have a duty to be honest to the new or prospective employer.

See section on ‘Pre-empting problems’ for more discussion of issues around requesting and providing references.

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c)

Criminal Records/ Disclosure and Barring Service

Spent convictions Employers often wish to ask questions about a potential employee's previous convictions in order to protect their organisation from foreseeable risks. The general rule under the Rehabilitation of Offenders Act 1974 is that such questions do not relate to spent convictions - provided that the position is not within the Act's excepted professions, occupations or offices.

You should not usually apply for details of an applicant’s spent convictions, nor can you deny employment to, or subsequently dismiss, someone who decides not to disclose a spent conviction on the ground that they failed to disclose it, unless the post is exempt. Likewise, failing to disclose a spent conviction is not usually a lawful ground for excluding someone from any office or profession, unless an exception applies as listed below. Having a spent conviction is not a lawful ground for prejudicing someone in the way they are treated in an occupation or employment.

Failure to disclose a spent conviction is relevant, however, if the post is ‘regulated’ as it requires a Disclosure and Barring Service (DBS) check. Most previous convictions including spent ones but not minor specific old ones and cautions, (see https://www.gov.uk/government/news/disclosure-and-barring-service-filtering for filtering rules) will be disclosed as part of the DBS scheme.

Where such checks are required, candidates should be informed of this in advance and told that failure to disclose these convictions could be a dismissible offence. The Disclosure and Barring Service obliges ‘registered bodies’ and employers to follow the DBS Code of Practice and have a policy on the recruitment of ex- offenders . The latter can be made available early in the process to applicants, who are asked to undergo a check. For a model see, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/143673/sample -policy-recruitment.pdf In most cases though, excluding or dismissing someone from employment on the grounds of  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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a spent conviction means they may be able to take the matter to a court or to an Employment Tribunal. Nevertheless you are entitled to ask potential employees to reveal unspent convictions but from 1st December 2014 you cannot request them to seek a police declaration confirming this. It is an offence to make this request a condition of employment.

The Rehabilitation of Offenders Act 1974 applies to most types of sentence, whether it is a term of imprisonment, a fine, probation, conditional discharge, findings in a juvenile court that an offence has been committed, and convictions of certain offences in service disciplinary proceedings.

The length of the rehabilitation period depends on the sentence and runs from the date of the conviction. When the relevant rehabilitation period has expired, the conviction becomes 'spent' and usually will not need to be disclosed in the future, for example, when you are applying for a job, completing an insurance proposal form, applying for credit facilities or a tenancy of property.

It should be noted that it is the length of the sentence imposed by the court which is relevant and not, for example, the length of time actually served in prison. A sentence counts in the same way whether you are actually sent to prison or the sentence is suspended.

Rehabilitation Period per Sentence The rehabilitation period for a sentence is the period: (a) beginning with the date of the conviction in respect of which the sentence is imposed, and (b) ending at the time listed in the following Table in relation to that sentence: Sentence

End of rehabilitation period for End of rehabilitation period for adult offenders offenders under 18 at date of conviction

A custodial sentence of The end of the period of 7 years The end of the period of 42 more than 30 months and beginning with the day on which months beginning with the day on up to, or consisting of, 48 the sentence (including any which the sentence (including any ďƒŁ Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Sentence

End of rehabilitation period for End of rehabilitation period for adult offenders offenders under 18 at date of conviction

months

licence period) is completed

licence period) is completed

A custodial sentence of more than 6 months and up to, or consisting of, 30 months

The end of the period of 48 months beginning with the day on which the sentence (including any licence period) is completed

The end of the period of 24 months beginning with the day on which the sentence (including any licence period) is completed

A custodial sentence of 6 The end of the period of 24 months or less months beginning with the day on which the sentence (including any licence period) is completed

The end of the period of 18 months beginning with the day on which the sentence (including any licence period) is completed

Removal from Her Majesty’s service

The end of the period of 12 The end of the period of 6 months months beginning with the date of beginning with the date of the the conviction in respect of which conviction in respect of which the the sentence is imposed sentence is imposed

A sentence of service detention

The end of the period of 12 The end of the period of 6 months months beginning with the day on beginning with the day on which which the sentence is completed the sentence is completed Continued

A fine

The end of the period of 12 The end of the period of 6 months months beginning with the date of beginning with the date of the the conviction in respect of which conviction in respect of which the the sentence is imposed sentence is imposed

A compensation order

The date on which the payment is The date on which the payment is made in full made in full

A community or youth rehabilitation order

The end of the period of 12 months beginning with the day provided for by or under the order as the last day on which the order is to have effect

The end of the period of 6 months beginning with the day provided for by or under the order as the last day on which the order is to have effect

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Sentence

A relevant order

End of rehabilitation period for End of rehabilitation period for adult offenders offenders under 18 at date of conviction The day provided for by or under The day provided for by or under the order as the last day on which the order as the last day on which the order is to have effect the order is to have effect

Note: Most of these periods are reduced by half if the offender was under eighteen at the date of conviction.

The following sentences can never become spent, whatever the age of the offender at the date of conviction: • a sentence of imprisonment, youth custody detention in a young offender institution or corrective training, for a term of more than 4 years • a sentence of imprisonment for life • a sentence of preventive detention • detention during Her Majesty's pleasure or for life Criminal offences which are ‘spent’ do not normally need to be declared on application forms or in answer to other requests about criminal convictions. Exceptions to this rule are detailed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. This gives a list of jobs where previous criminal convictions must be declared regardless of whether or not they are ‘spent’.

Four categories of job to which this applies are: 1)

The professions, such as medical practitioners, barristers, accountants, vets and opticians.

2)

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3) Certain regulated occupations such as firearms dealers, directors of insurance companies and those in charge of certain types of nursing home.

4) Those working with children and vulnerable adults, such as elderly and disabled people.

The above list is not exhaustive. For a complete list see the Liberty website: www.yourrights.org.uk and follow links through ‘The Right to privacy’, ‘Revealing your convictions and involvement with the police’ to ‘How a conviction becomes spent’.

Disclosures There are currently two types of disclosure about a job applicant’s previous criminal convictions available to employers. Which one you ask for, if any, will depend on the job in question and the level of protection necessary to conduct the employer’s business and to safeguard customers, service users, clients or others. The collection and holding of disclosure information which is not necessary or is excessive will breach data protection principles.

Disclosure information should not be retained unless there is an overriding reason for doing so, and in any event for no more than 6 months. Records of the fact that a check was carried out and the result of that check may be retained. Disclosure information must not be shared with other employers. No other means of obtaining information about criminal convictions – e.g. enforced subject access (which demands that people use their right under the Data Protection Act to see records about themselves) or media checks, are permissible.

1.

Standard Disclosure and Barring Check

This type of check is available through the Disclosure and Barring Service for any person seeking a position involving regular contact with persons under 18 years of age, such as teaching or care or with adults conducting ‘regulated activity’, see below, or for occupations which are exempt from the Rehabilitation of Offenders Act 1974, e.g. nurses, lawyers, accountants, police officers, foster – carers and child minders and traffic wardens.

This check requires a joint application from both the relevant person and the potential employer or organisation seeking the check. The potential employer or organisation must be a  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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registered person in order to be able to make such a joint application, or will need to make an application via an Umbrella Body (see the government website for further details, www.gov.uk under employing people/ recruiting and hiring).

This type of check will result in the issue of a DBS Certificate which will provide information about both spent and unspent convictions but not specified old, minor ones such as police cautions, reprimands or warnings. For the list of filter rules see, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/206690/Filteri ng_rules_for_criminal_record_check_certificates_v2.1.pdf A DBS check does not have an official expiry date and is only accurate at the time the check was conducted (like MOTs). Advice on the .GOV web site indicates a fresh check will probably be required if a certificate is over 6 months old, see http://www.volunteering.org.uk/ 2.

Enhanced Criminal Record Disclosure

This type of check is available for all those who provide unsupervised teaching, training, supervision, advice, treatment and transport regularly for either children or are practicing ‘regulated activities’ with adults, see below .

The check will also be available for any person seeking registration as a child minder or day carer, or approval as a foster carer or parent, or seeking gaming or lottery licences or judicial appointments. Like a Standard level check, it will require a joint application from the relevant person and the potential employer/organisation which must itself be registered.

The check will result in the issue of an Enhanced DBS Certificate which will show all of the details contained on a DBS Certificate - i.e. unspent and spent convictions, but not specified old and minors ones such as cautions, reprimands and warnings. It may also show additional information held by the police that is not about convictions but which the police feel to be relevant to the job or voluntary work sought. These may include criminal intelligence information, records of acquittals and results of inconclusive police investigations as well as

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uncorroborated allegations from informants. Again, the DBS Certificate will be provided to both the applicant and the potential employer/organisation.

Where the position being sought involves close contact with children or vulnerable adults, the certificate will also contain details of whether the applicant is named on lists of those considered unsuitable to work with vulnerable people. These DBS lists (previously called ISA barred list) are of individuals who are unsuitable for working with: •

children

•

adults

It’s against the law for employers to employ someone or allow them to volunteer in jobs that involve caring for, supervising or being in sole charge of children or adults if they’re on one of the barred lists.

Disclosure Barring Service The Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA), who previously had responsibility for disclosures and maintaining barring lists, merged and became the Disclosure and Barring Service (DBS) in December 2012. Its main role is assisting employers make safer recruitment decisions by preventing unsuitable staff and volunteers work with vulnerable groups and children.

Employers must conduct a DBS check (formerly CRB) on prospective volunteers and staff working in ‘regulated activities’. This is a check on the individual’s previous criminal record (CRB) and it they are on the barred list held by the DBS (formerly ISA).

It is an offence to knowingly offer work in a ‘regulated activity’ to someone who has been previously barred by either the DBS or ISA. Regulated activity for children include •

regular unsupervised activities such as teaching and training, driving a vehicle

only for children, providing care, supervision or advice and guidance •

regular working in establishments such as schools or children’s care homes

when there is sufficient opportunity for contact •

personal care

•

child minding or foster caring

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Regulated activities for adults include •

providing health or personal care or social work

•

assisting with bills and affairs

•

providing transport but not family members or taxi drivers

Obtaining checks on potential workers Workers can either: be given a form to complete and return to their new employer with evidence of their identity for them to process the check. The certificate will be returned to the worker. or give their permission to the employer to see their on line certificate through the Disclosure and Barring update service.

Registration with the update service lasts 1 year and costs £13. It means a worker can take their certificate from job to job and there is no recruitment delay while the employer waits for the check to come through. For further information about the process and what each party has need to do, see www.gov.uk . Search for disclosure and barring.

d)

Statutory employment rights

All jobs are subject to certain legal constraints which are designed to protect both workers and employers.

Legislation protects part-time and fixed term workers who should receive no less favourable terms (pro rata) than full time and permanent workers. (Part-time Workers [Prevention of less favourable treatment] Regulations 2000/Fixed-term Employees [Prevention of less favourable treatment] Regulations 2002) Agency workers are not usually employees but from October 2011 they have similar terms to comparable employees after 12 weeks service.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Employers must issue employees with a written statement of employment particulars within 2 months of an employee starting work. This must include start date and information about a list of terms and conditions such as pay. For a full list see PERS leaflet No. 1 Contracts of Employment.

You must be sure that you observe the minimum legal requirements in the terms and conditions that you offer to prospective workers. You may wish to improve on these minimum standards as a means of motivating and valuing your workforce (see section on Positively Seek Diversity). However you must not offer less than the legal minimums.

Minimum terms and conditions apply to: • pay rates and pay statements • hours of work • daily and weekly breaks • paid holidays • sick pay • parental and adoption leave and pay • time off for certain public duties, including some trade union activities • notice requirements • redundancy notice and pay and guarantee pay when laid off.

• disciplinary and grievance procedures - these procedures should follow the ACAS Code of Practice, see www.acas.org.uk/CHttpHandler.ashx?id=1047. Employment Tribunals must take account of this in determining whether a dismissal was fair, so it is effectively obligatory to follow it.

See PERS leaflet No. 1 Contracts of Employment, and PERS model policy No. 1 Written Statement of Employment Particulars for more information. Other PERS leaflets give more detail about some of these issues – see www.pers.org.uk under ‘Publications’.

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e)

Contract law

Contractual rights do not depend on a written statement, although by law you must provide this within 2 months of an employee starting work for you. Your employees have a contract of employment as soon as they start work for you. This contract consists of anything that has been written down (for instance in the job advertisement, the application pack or in a letter of appointment), or anything that has been orally agreed between you, for instance at interview.

Any term in a contract which gives less that the statutory minimum (see Statutory Employment Rights above) e.g. less notice that the law allows, is overridden by the law.

Employers are free to offer better terms than the minimum.

Contracts can be changed by mutual agreement or by due process of notice and working to new terms. However if you break the terms of a contract without agreement, you will be in breach of contract and your employee may claim damages against you. For this reason it is very important that you are clear and consistent right from the start as to exactly what terms you are offering a new employee. Make sure that interviewers are aware that anything said at interview can be held to be part of the contract, so they should not say anything unless authorised to do so.

Clarity about contractual terms is a major factor in preventing disputes and misunderstandings throughout the on-going employment relationship.

See PERS Action Pack ‘Changes to Employment Contracts’ at www.pers.org.uk ‘Publications’ for more information.

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3.

Positively seek diversity

The benefits of a diverse workforce that reflects your community and offers opportunity to people on the basis of their abilities and not their background has been widely established.

Workplace attitudes and policies which aim to be inclusive and sensitive to a variety of needs benefit everybody.

This goes beyond the requirements of anti-discrimination law, which seeks merely to avoid unfair treatment on the basis of a fairly limited range of personal characteristics. Achieving a diverse workforce depends on recognising the wider inequalities in our society and acting to challenge prejudice and promote genuine opportunity for everyone. It means being aware of a variety of individual needs and preferences and accommodating these as far as you realistically can. Above all, it means selecting people on the basis of their ability to do the tasks required by the job and not requiring irrelevant experience or attributes.

Although it is not a legal requirement, the key tool for dealing with diversity and discrimination issues in employment is an equality and diversity policy. It gives you the framework to deal with discrimination across all areas of employment – how you recruit and select staff, the induction of new staff, your day to day employment practice and how you deliver services to your clients.

There is an Equality and Diversity policy on www.pers.org.uk in the Model Policies section.

Successful diversity policies will entail: •

attitude – awareness and commitment, especially among senior staff

•

accessibility – not only in terms of physical factors such as stairs and adapted

toilets, but also language, public transport, print size, publicity outlets etc •

terms and conditions, with flexible working arrangements to suit particular

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•

training of all staff

a) Attitude ‘Experience and research evidence shows that the employers who are most successful in attracting disabled applicants to work for them, and thus getting the best person for the job, are · those companies which start off by having a leadership commitment to equal opportunities · those companies which have specified equal opportunities policies, and especially those which pay attention to the arrangements for disabled employees · the employers who have trained their managers and workforce in disability awareness, and who have helped their employees to confront the misconceptions about what disabled people can do · the employers who are familiar with their duties and responsibilities under the /Equality Act, and have acted to comply.’

Employing disabled people - a good practice guide for managers and employers, February 2003, Disability Rights Commission (now the Equality and Human Rights Commission)

b) Accessibility checklists

Advertising: •

Consider how widely you can afford to advertise your posts, for instance in local newspapers, in the ‘ethnic’ press, in the ‘Big Issue’, or with the Disability Employment Adviser at your Job centre.

•

Check carefully whether or not your post qualifies for an ‘Occupational Requirement’. Otherwise make it clear that applications are welcome from all sections of the community.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source

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Application Forms: •

Do not ask for unnecessary skills, abilities or qualities which are non-essential for the job you are offering. Make the application form/process appropriate to the job – for instance, simplify or replace forms for jobs that do not require writing skills.

•

Do not ask for unnecessary information about periods of employment and dates which could lead to inadvertent age discrimination. Do not ask for specific qualifications which may be new or else no longer be current and thus exclude older or younger people.

•

Offer application packs in different formats such as large print, on audio tape, on computer disk, by email or on your website. Be prepared to accept applications in different formats if an applicant cannot use the formats you offer.

•

You may no longer ask on an application form if someone has a disability. You can ask if they can do the main (intrinsic) parts of the job and if they need adjustments to the application or interview process. Separate this information from the rest of the application during shortlisting. See our sample application form in the ‘Supplementary material’ section of this toolkit.

•

Use ‘equality monitoring’ questionnaires if you have a valid reason for doing so.

Make it clear that completion is optional.

Interview arrangements: •

Make sure your interview location is accessible on public transport. Offer

travel expenses.

•

Make reasonable adjustments to the format of an interview to accommodate

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•

Do not hold interviews on days which are religious holidays. Avoid school

holidays and school start/finishing times if possible.

•

Try to have a representative mix of people welcoming and interviewing

candidates so that they get a sense of the diverse composition of your workforce.

•

Make sure any refreshments are acceptable to most dietary needs. Do not

include an expectation of alcohol consumption in any social activities involved in the interview process.

•

Only ask about a person’s disability in relation to their ability to do the

intrinsic parts of the job. Let the person tell you about their abilities and limitations –this will assist you greatly in assessing whether you may need to make an adjustment to the job. Do not assume that the person will have limited abilities to carry out a job because of their disability – they may well have developed innovative ways of carrying out those tasks.

•

Do not ask questions about a person’s home responsibilities. You must

assume that people would not apply for the job if there were personal reasons why they could not actually perform it reliably. Do not make assumptions about a person’s likely need, now or in the future, to take parental leave.

•

Do not ask questions related to age, such as ‘How would you feel about

managing older/younger people?’ or make age-related assumptions about appropriate levels of responsibility.

•

Adopt a consciously user-friendly approach to certain groups – e.g. young

people, older people, women returners, homeworkers, long-term unemployed, people for whom English is not their first language, people who have experienced discrimination/ridicule/ failure in the past, internal candidates.

•

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questions challenge assumptions and preconceptions.

c) Terms and conditions • Adopt and publicise flexible working conditions to accommodate a variety of

personal circumstances.

• Encourage job sharing and working from home where possible.

• Consider how generous you can afford to be with benefits such as extra holiday

entitlement, contractual sick and maternity/paternity/adoption pay/special leave.

• Check that benefits such as sick leave/pay, holidays, use of computers, flexible

working arrangements, redundancy selection do not have an inadvertent age bias.

• Be sensitive to particular needs such as breast-feeding facilities, religious

observance such as space for prayers, dietary requirements.

• Ensure that your Equality and Diversity policy and your Disciplinary policy make

it clear that harassment and unfair discrimination will not be tolerated.

d) Training Make sure all staff are aware of the organisation’s Equality and Diversity policy and of the penalties for unacceptable behavior to other staff and service users. Ensure that people involved in a recruitment and selection procedures are adequately trained in the appropriate procedures.

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4.

Promote your organisation

Recruiting is expensive. Additionally, many recruitment exercises are, initially at least, unsuccessful, with too few people of the desired calibre applying for your post. Many of the costs are tied up in the advertising process. It makes sense to spend your money not only on advertising for the post in question, but also using it as an opportunity to promote your organisation more generally. A marketing approach will not only sell your service and build up your reputation; the more attractive your advertising, the more likely you are to attract appropriate, enthusiastic and motivated candidates for your job.

Remember too that applying for a job is usually a stressful and potentially life-changing undertaking for any applicants. If you recognise this and treat them with the respect and sensitivity they deserve, they will act as positive ambassadors for your organisation whether or not they decide to apply for your job and whether or not they are successful in securing the post.

A recruitment process is as much about employees choosing you as it is about you choosing employees.

a)

Branding

Your advertising should establish your identity as an employer to prospective employees, as well as ‘telling the world’ who and what your organisation is. Your advertising and promotional literature should describe, or at least imply, your organisational culture – that is, your value systems, your policies, and your attitude to your employees. It should convince a potential applicant that yours is the right place for them to work, now and in the future.

This does not mean that you need to adopt a ‘vanilla’ approach, bland and sweet in every respect. A strong, distinctive and honest image will mean that candidates are more likely to match themselves and their aspirations to your organisation and to self-select. Be clear about what makes your organisation unique. Advertising should attract the best and filter out the

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inappropriate applicants. Neither should you ‘oversell’ your organisation. Be realistic about what you can offer now, even if you hope to offer better things in the future.

Advertisements should include essential information about the identity of the employer, the location and nature of the job, how to get more information and how to apply for the post.

Often it is useful to have interview dates as well as deadlines for receiving completed applications. Just as important, however is the culture and tone that is conveyed in the advertisement - strong ‘strap lines’ or quality assurance logos are important components.

Remember too, however, that large and wordy advertisements are unlikely to impress; people will make a judgement about your attitude to resources on the basis of the amount of money they think you have wasted.

b)

Competing

In times of relatively high employment, it is often the case that a lot of employers are attempting to attract a relatively small pool of experienced and qualified staff. Small organisations will always face competition from larger organisations that can afford to offer enhanced pay and benefits.

The better the terms and conditions you are able to offer, the more attractive your organisation will be. However, research has shown that this is not the only motivating factor for people choosing where to work. Research has shown that factors such as: • values and mission • diversity • management support • learning and development • career progression • ‘work-life balance’ and flexible working opportunities are also very high on most people’s list of requirements from their employer of choice. Try to offer these inducements, which may not be costly, and advertise that you do so.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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c)

Fishing in a different pool

As well as offering value-based inducements and attractive terms and conditions, you may be able to think creatively about extending the pool in which you fish. This is, of course, one of the sound business reasons for aiming for diversity and non-stereotypical employees.

However, as well as ensuring that your advertising reaches the widest possible audience of local workers and people experienced in your sector, you might also explore innovative methods such as: • using secondments and tendering • advertising in different contexts, for instance in other languages or in other countries • developing training schemes/modern apprenticeships • using and training volunteers, although it is of course important to do this responsibly and not as a means of cheap labour Be careful that your attempts to include a wider audience do not imply that you will not consider more traditional candidates or high quality internal applicants.

Other sections of this toolkit look at some of these options.

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5.

Pre-empt problems

Our own experience, alongside the feedback we have had from our training and consultation on recruitment, makes it clear that that there is no fool proof way of avoiding problems.

Recruitment is a complex and demanding exercise involving many aspects of law and with huge implications for the future of both organisations and individuals. There is, unfortunately, always the possibility of unexpected issues and unforeseen disasters.

However, many problems can be overcome by good planning and a clear understanding of what you are trying to achieve. The following are some of areas that have created uncertainty and where some forethought can save difficulties later on.

Many of these issues are addressed in the PERS model policy No. 11 Recruitment and Selection, available on the publications section of the PERS website at www.pers.org.uk .

a)

References

See section on references under Data Protection Act section.

Requesting references

References are a notoriously unreliable form of verification. A previous employer may write a good reference for a poor worker in order to get rid of them, or conversely may write a poor reference for an outstanding worker in order not to lose them. It is in any case unreasonable to expect someone from another workplace to comment on how well a candidate will actually perform in your organisation, where personalities, management style, tasks and overall ethos may be entirely different.

Nevertheless, references have an established value as a means of verifying that the factual information given to you by a job applicant is true and as one way of checking that they are not concealing any serious problem areas.

You can make the most of references by being clear what it is you are asking and why, and making it as easy as possible for the referee to give you the information you require. This is ďƒŁ Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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most easily done by using a set format with clear and unambiguous questions asking a referee to confirm facts. You may also give space for additional comments that encourage a fuller response if the referee wishes to do so.

Best practice is to apply for references only for the person who is offered the job, rather than everyone offered an interview. The Equality Act limits health and disability questions that can be asked before a job offer is made.

References may be used to check: • facts about previous employment such as dates, job title and content • attendance, punctuality and health records (such questions, especially concerning health issues, should not be asked prior to a conditional job offer) • honesty and reliability • whether any disciplinary/competency matters are in progress • whether there are any other issues that the previous employer feels you should be aware of and • whether there are any areas that might need attention/supervision during the probationary period You should be prepared to discuss any discrepancies of information with your prospective employee and be aware that there are two sides to any problem.

Giving someone a bad reference because they complained about discrimination (of themselves or someone else) is victimisation under the Equality Act, and withdrawing a job offer because of such a reference without trying to find out the applicant’s view could mean that your organisation is also victimising the applicant.

There is a model reference request form in the ‘Supplementary Material’ section of this toolkit.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Giving references

Employers are increasingly nervous about giving references. They fear that doing so opens them up to litigation by employees who think a reference is unfair or else makes them responsible if an employee for whom they have given a positive reference does not perform well in a new job.

Given the potential lawsuit risks, many employers have adopted a policy of giving out no references at all or of giving out only basic employment data such as dates of employment, job titles, and wage rates. However this can seriously hinder a former employee in finding work and even then, such a restricted policy does not eliminate the risk of being sued. For example, if an employer makes exceptions to the policy by giving references for deserving employees, this may open the door to claims of discrimination or unfair treatment.

In practice the likelihood of being sued is remote. However, giving someone a bad reference because they complained about discrimination (of themselves or someone else) is victimisation under the Equality Act, and it is technically possible for a former employee to bring a claim in negligence where his or her former employer provides an inaccurate and damaging reference to a prospective employer.

A claim of negligence might be made where a claimant can show that: •

the employer owed him or her a duty of care

•

the employer breached that duty by failing to exercise reasonable care; and the former employee has suffered loss for which he or she can recover

•

compensation in respect of statements made to third parties (i.e. prospective employers) which have adversely affected his or her relationship with that third party

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When giving employment references, you can reduce any risk of being sued for defamation if you keep in mind the following key points:

•

Be truthful. If your statements are true, they are not defamatory. For this

reason, refrain from making any statements that you are not prepared to back up and substantiate. Give objective opinions and conclusions that you can support with objective facts, rather than mere allegations, speculation, or gossip. For example, you can safely state that an employee was dismissed for missing too many days of work. However, once you give unsubstantiated opinions on reasons for the absenteeism, such as that the employee was drinking too much or was into illegal drugs, you increase your risk of being sued.

•

Be clear and unambiguous. Keep in mind that statements that are technically

true may still be defamatory if they are incomplete or misleading. For example, an employer stated that an employee was dismissed for drug use but neglected to state that the employee's refusal to employ a supervisor's relative also contributed to the dismissal decision. The incomplete statement was defamatory because it unduly emphasised the employee's improper conduct.

•

Be objective. The tone of your statements is also important. Your references

should not sound petty, vindictive, or accusatory. No matter how trying your relationship with the former employee may have been, you should try to discuss the facts in an objective, non-malicious way.

•

Be responsive. References should be limited in scope to information that the

enquiring employer requests. This does not mean that you should feel compelled to provide all requested information, because generally you are under no legal obligation to provide employment references at all. You do not need to volunteer any unfavourable information that is not requested.

•

Stick to job-related facts. Do not provide any information that is irrelevant to

the employee's performance or behaviour in the workplace. Comments about an employee's personal life are especially hazardous, because even if the comments are true, they may raise issues of unlawful discrimination.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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•

Be selective in choosing your audience. Limit your disclosure of employee

information to those persons who have a legitimate interest in that information. A statement that is not defamatory when made to a prospective employer may be defamatory if it is made to friends, spouses, employees, or others who have no business reason to know the information.

•

Limit telephone references. Because you need to be sure that a person to

whom you are providing an employment reference has a real business interest in receiving the information, you should use care in providing references over the phone. Unless you are going to limit your references to basic employment data, at a minimum you should arrange to provide the information in a return call. This will give you an opportunity to verify who the caller is. The better alternative is to have the caller make the reference request in writing.

Health Enquiries about a candidate’s health and attendance record are reasonable to protect your organisation from appointing someone who is not likely to be able to perform their job adequately. In some instances, for instance where employees are involved in the preparation of food, health checks are essential. However, you need to give due care and consideration both to why you are asking and what you will do with the information you get back.

The Equality Act forbids asking questions about health or disability before a conditional job offer except: •

to find out if the applicant can do the main (intrinsic) parts of the job or

•

if the applicant needs adjustments to the selection process or

•

to carry out anonymous diversity monitoring The Data Protection Act requires you only to obtain information that is ‘adequate, relevant and not excessive’. Detailed questionnaires which ask candidates to reveal personal medical history and ask for information about habits such as smoking and alcohol consumption which  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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are likely to be irrelevant to their ability to perform the job are likely to contravene this requirement.

The Equality Act limits discrimination against anyone because of, or for something arising from, their disability. Some medical conditions fall within the definition of a disability under the Act and to refuse a person a job on these grounds without being able objectively to justify the rejection would be unlawful. If you know (or ought to have known) that an employee or applicant is disabled you have duty to make reasonable adjustments in order for them to perform their job.

Checklist If you are asking candidates about their health, whether in the application form, at interview or in reference requests, you should: •

Before making a conditional offer, only ask for information which might have a bearing on their ability to do the intrinsic parts of the job or indicate they need adjustments to the selection process (or for anonymous diversity monitoring).

•

After making a job offer ask whether the employee is disabled and needs adjustments to be made to help them do the job. This might include adjusting or removing some tasks if they can do the main intrinsic parts of the job but not less important parts.

•

Stress that any information given is confidential.

•

Be open and honest about why you are requesting information.

•

Be open and honest about any genuinely insuperable limitations that might affect your decision, such as physical accessibility, continuity, statutory requirements or other genuinely essential needs of the job.

•

Concentrate on abilities, not problems, at least in the initial assessment of someone’s suitability for a job.

•

Stress that you will make every effort to find ways of minimising the impact of any health problems through adaptations, flexible working etc.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source

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•

Discuss any apparent problems with the candidate, who may be able to suggest solutions.

•

Pay for any health checks that you request.

•

Adopt a formal recruitment policy which clarifies your attitude to health issues.

•

Adopt a formal absence management policy which clarifies your response to persistent or long-term absence owing to sickness.

PERS can provide model recruitment and absence management policies, see www.pers.org.uk.

b)

Pregnancy/ parental responsibilities

It is unlawful to discriminate against anyone on grounds of their pregnancy. This applies equally during the recruitment process and during on-going employment. You must not refuse a person a job on the grounds of the fact that they are pregnant (or in your view are likely to become pregnant in the near future) even if they cannot at present perform all the tasks required for the job and even if they will be absent on maternity leave immediately they are appointed. This applies even in short-term appointments.

However, unless your contractual terms and conditions state otherwise, a woman will not be eligible for maternity pay unless she has worked for your organisation for at least nine months before the baby is due. Once payable, Statutory Maternity Pay (unlike Statutory Sick Pay) is reimbursed to employers through the HMRC. This means that you should be in a position to employ maternity cover during the maternity absence of your new employee.

Health and safety legislation requires that you undertake a risk assessment for pregnant employees and take appropriate steps to eliminate or reduce any risks you identify. This may mean that you have to ask other members of staff to perform certain tasks (such as any heavy lifting) for a pregnant colleague or find other ways of dealing with unacceptable risk.

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Parents of children and some carers have certain rights to leave (usually unpaid) and to request to work flexibly. Discriminating against employees who assert these rights is also unlawful.

Please contact PERS or one of the websites in the Appendix if you need more information about parental and carers’ rights.

c)

Temporary and fixed term posts

Even where funding is only guaranteed for a specified duration, most posts should be offered on a permanent basis subject to funding continuing to be available for the post.

Where a post is funded for a particular duration, this should be made clear in the advertisement.

In general, we do not recommend denoting posts as temporary or fixed term since there is frequently nothing to be gained by doing so. The law now gives fixed term workers equal rights with comparable full-time workers and there is no benefit to the employer in respect of avoiding the financial obligations of eventual redundancy. Conversely, people employed on temporary or fixed term contracts will often seek alternative employment some time before the end of the term in order to ensure their own continuity of income, thus making difficult the satisfactory completion of a piece of work. Usually, an organisation will wish to try to replace or extend funding or explore redeployment when a particular funding stream comes to an end.

In general fixed term and temporary posts should only be offered as short-term measures to cover the absence of permanent staff, such as providing maternity or sickness cover.

Additionally there may be some “specific task” jobs which the employer is certain will be one-off and limited in nature. In these circumstances, temporary contracts may be unavoidable. A temporary post holder should be told wherever possible how long the post will continue, although this is likely to be unpredictable in some cases (e.g. sickness cover) and may be subject to revision if circumstances change. Specific task posts (e.g. for a  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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particular piece of research) should also be clearly advertised as such, with a clear indication that subsequent work cannot be guaranteed.

If a temporary post becomes permanent, (for instance because you receive new funding or because the original post holder resigns), you should consider whether you need to advertise it or whether you can give it to the temporary worker without following a further selection procedure. Your decision is likely to depend on how comprehensive the original procedure was and whether other potential applicants were discouraged from applying because of the temporary nature of the post. If you decide that you should openly advertise, any temporary post holder will be able to apply for the permanent post but will not be guaranteed selection.

d)

Internal applicants

As a general rule, all vacant posts should be advertised both internally and externally, with all applicants being selected on the same objective basis. So long as your process is appropriate, transparent and fair you should in principle appoint “the best person for the job” regardless of background. However there are inevitably particular considerations for internal applicants.

Your recruitment policy should make it clear if there are situations when you will only advertise internally in the first instance – for instance, to provide emergency or immediate cover, to fill a temporary or very short-term post, to fill a post for very few or additional hours, or if there are in-house redundancies. Internal applicants for these posts, even where there is only one contender, should still be selected through a recognised process, probably including a letter of application, an interview and a trial period. Selection should still be made against the requirements of a job description and person specification.

You should be particularly sensitive in a situation where someone has been ‘acting up’ in a post which is then advertised. The internal applicant will have a great deal at stake in terms of self-esteem and relationships with colleagues; outside applicants will be wondering whether there is a hidden agenda and a pre-determined outcome in favour of the known applicant.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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Relationships between an unsuccessful internal applicant and a new post-holder may be tricky and wider staff morale may be affected.

Checklist These matters may be helped if: • Confidentiality is strictly maintained so that only people who need to know are aware of an internal applicant.

• All staff are aware of the organisation’s policy on selection and recruitment – a comprehensive and easily available written policy will help here.

• Advice and support are available to an internal applicant from colleagues who are not involved in the selection process (in the same way that many job seekers ask friends for advice).

• Clear and constructive feedback is available to all unsuccessful candidates after the process is complete.

e)

Previous or reported knowledge

‘Informal’ information should not play any part in the selection process. You must rely on the processes and systems you adopt to give you the correct outcome. This is not always as easy as it seems, particularly if your organisation is engaged in specialist activities for which there are a limited number of practitioners, many of whom will be known to each other on their professional networks.

You may receive an outstanding application from someone whose reputation you (or someone on the selection panel) know to be less than perfect or you may receive a poor application from someone you know can perform very well.

Checklist Factors to help manage this situation include:  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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• Make it clear in your recruitment policy that members of the selection panel must declare an interest if they know an applicant. The policy should state the circumstances in which a panel member would be asked to withdraw from the panel – for instance, if the applicant is a close relative. However it is probably not realistic to exclude from the panel anyone who has any knowledge of any applicant – this would, for instance, make the interviewing of internal applicants almost impossible.

The panel should be able to make decisions relevant to each situation.

• Check that your process is appropriate. If you know of one good candidate who cannot clear the hurdles you have set in the application process, there are probably others you don’t know about. Remember your aim is to enable all good candidates to show themselves at their best.

• Create a level playing field. Use a process which treats all candidates the same and can be shown to do so.

• Be transparent. Make it explicit to all applicants that the selection process will be based solely on the evidence provided in the application form and your other selection procedures. You should emphasize that no allowance will be made for what you know (or assume) outside of the process. This is reassuring to ‘outsiders’ of whom you will not have any previous knowledge as well as being fair to the ‘insiders’. It will also help you to justify your decision to an aggrieved unsuccessful applicant.

• Supervise and monitor new workers. Make sure that your induction and probation policies are robust enough to detect and deal with a new worker who does not live up to the promise they showed in the selection process.

f)

Confidentiality

You are bound to respect the confidentiality of applicants both by the Data Protection Act and by the demands of good practice. Confidentiality applies in every part of the process.

•

Application forms must be opened, read, copied and stored only by those who need to do so.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source

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•

The short-listing process should be done in private and the confidentiality of any copies of application forms should be closely guarded by panel members.

•

The content of interview questions and tests should be carefully restricted.

•

Names of interviewees should be restricted to those who need to know for purposes of correspondence and administration.

•

Interviewed candidates should not be able to see information relating to any other candidate or have any unfair prior access to questions or tests.

•

The identity of the successful candidate should not be made public until all candidates have been informed of the outcome and any conditional offer to the successful candidate has been ratified.

All staff and panel members should be reminded of the requirements to keep information confidential. Breaches of confidentiality involving current staff should be dealt with as serious disciplinary matters. The selection panel will need to determine what action is to be taken where breaches implicate other people.

g)

Involving service users

Many organisations like to involve service users in selecting staff. This has clear benefits, especially for assessing essential qualities of empathy and interpersonal skills in candidates and in ensuring that the successful candidate has the support and liking of the people with whom they will be working. Additionally it can provide valuable experience and affirmation for the service users themselves. Some organisations extend this principle by involving all relevant staff in the selection of a senior manager.

Checklist If you do this, you must observe two cardinal rules: 1)

Be clear and transparent about the roles and input of the service users into the final decision. Will they: • Be fully participating members of the panel, involved in initial planning as well  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source

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as in interviewing?

• Be invited to voice their general impressions in a feedback session with the panel?

• Have pre-determined questions or just chat?

• See candidates on their own?/ a group?/ in a social or formal setting?

• Be asked to score candidates?

• Have a power of veto over any candidate?

• Have access to application forms?

• Have access to other parts of the selection process, such as tests, and/or be included in full panel decision-making discussions?

There are no right or wrong ways of involving users, provided everyone, including the candidates themselves, knows the process and the extent and the limitations of the input.

2)

Train/ brief those who will be involved in the selection. As well as making their

role very clear you must ensure that everyone understands basic principles of confidentiality and of appropriate and non-discriminatory behaviour.

h)

Constraints – urgency and resources

Sometimes organisations need to appoint quickly in order, for instance, to preserve staff ratios with vulnerable clients or fill very short-term posts (say, of six months or less). Sometimes, where organisations have to fill a number of posts or have undergone a number of unsuccessful recruitment campaigns, limited resources preclude the expense of repeating a full-blown recruitment process. In these limited circumstances, it may be possible to shorten the recruitment timetable in the following ways: • Initially, advertise internally only (See earlier in this section for when this might be acceptable).

• If no current staff express an interest, you might attempt to fill the vacancy as

quickly as possible by various means, including personal invitation, word of mouth and personal contacts.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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• Use limited appropriate advertising, proportionate to the nature and duration of

the post.

• Limit public advertising to places that can place advertisements quickly, such as Jobcentres and local daily/ weekly publications.

• Give a phone number only for application pack requests to speed up the turn around time.

• Reduce the response time for applications to be returned to a week or ten days.

• Consider doing initial long listing by telephone.

• State in the advertising that someone must be available to start work immediately and make this an essential part of the person specification (but don’t do this unless you can justify it).

• Limit your selection panel to two people.

You will still need to have a proper job description and person specification and to shortlist and interview as normal. In no case should an appointment be made without a process of checking the suitability and capability of the potential postholder, so references must be sought and other appropriate checks carried out. If the appointment is to a temporary post, the successful person should be given written terms and conditions for this which will include clear notification that if the post becomes permanent, an open selection process will be followed.

i)

Increased hours on existing posts

Occasionally work may increase and/or funding may become available to allow extra hours to be added on to existing posts. It may also be the case that a current worker reduces the hours they work, thereby releasing hours for another worker.

Your recruitment policy should cover this eventuality by stating, for instance, that where appropriate the post will be advertised internally in the first instance and appointments made on the same procedure as for a temporary post. If possible, you should try to share allocation of extra hours fairly between suitably qualified staff. If the increase in hours is  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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temporary, this must be made clear in the post holder’s Written Statement of Employment Particulars (written contract). If there is insufficient take-up from existing staff, the hours should be advertised and selection carried out as normal.

j)

Failure to appoint

Do not make an appointment unless the entire selection panel is reasonably convinced that the person you have chosen is up to the job. ‘Crossed fingers’ that things will work out right against all the evidence are not good selection tools. Repeating a selection process is expensive, stressful and time-consuming but is not as potentially disastrous as knowingly appointing someone who is not up to the job.

Be prepared to abort your selection process and start again at any stage if it becomes apparent that you have not attracted the right calibre of people, or have not attracted enough suitable candidates to give you sufficient choice.

Options then open to you are: • At interview, the selection panel should agree whether second or third choices would be acceptable if the first choice declines to accept the job offer.

• If you are short of choice (with only one or two good enough applicants after shortlisting), it may be worth simply repeating the advertising process and reconsidering existing applications along with any new ones. Make sure you don’t change your criteria and state in the advertisements that this is a re-advertisement and previous applicants need not reapply.

• Re-advertise the post more widely or in different places.

• If you have been round more than once and are still not successful, you may need to rethink your strategy. Could you redesign the job description, the person spec or the terms and conditions to make it more attractive or more inclusive? Could you widen your advertising to reach a wider audience? Could you ‘fish in a different pool’?  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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k)

Failure of probation/ bad appointment

In law, there is no difference between the status of an employee who is ‘on probation’ and any other employee. There are certain legal rights that only take effect after an employee has been in a job for a given length of time – these are listed in the leaflet ‘Contracts of Employment’ in the ‘Publications’ section of the PERS website. However, stipulating a probationary period can be a useful device to signal a time during which the new employee is still learning and the organisation is still assessing their suitability and their training/development needs.

You may stipulate in your written statement of employment particulars that newly appointed employees (and existing employees in new posts) will be subject to a probationary period of a given duration, during which time they will receive more regular and intensive monitoring and supervision. You may include a less rigorous procedure for notice and dismissal if it becomes apparent early on that the job is not working out.

Both parties still need to comply with the requirements of their grievance and disciplinary procedures, however, in case a claim is later made at Employment Tribunal that an employee was dismissed for an ‘automatically unfair reason’ such as, for instance, unlawful discrimination, pregnancy or asserting a statutory right. Your procedures should follow the Acas Code of Practice and include requirements to state the problem in writing, hold a meeting to discuss it, with a companion (TU rep or colleague – see Disciplinary Policy on web site for more details) and to allow for an appeal.

PERS can supply more information if requested.

l)

Conditional Offers

On most occasions you will only offer a job to a successful applicant on a conditional basis in the first instance. Confirming the offer will depend on the outcome of checks such as receipt of positive references, safeguarding/CRB checks, sight of appropriate documents showing the right to work in the UK etc. Under the Equality Act you can only start asking about, and planning, reasonable adjustments to the job to accommodate a disabled applicant once you  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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have made a conditional offer. You should make it clear to the applicant that they should not give notice in their current job until they receive a firm offer. Even if they are not currently employed elsewhere, you should not ask them to start to work for you until the firm offer is confirmed and formally accepted.

m)

Recruiting volunteers

In general, your procedures for recruiting volunteers will be the same as those for appointing paid staff, following the same principles and requiring the same checks.

However you may wish to consider particular issues more closely.

Checklist • How will you advertise for volunteers? You may use all the conventional outlets newspapers, newsletters, magazines for particular recruitment drives – but you may also want to have more on-going publicity by having, for instance, posters in shops, places of worship, community centres, libraries, or colleges. You might also advertise in community languages.

• Be clear about what you need volunteers to do and draw up a list of tasks/ duties accordingly. You may want to finalise details of the tasks/ duties with the volunteers themselves, since voluntary posts are likely to be more flexible and more focused on the development needs of the volunteer.

• Consider whether you need to use application forms, especially if the tasks involved do not require writing ability. Nevertheless, be sure to record how you made your selection of the person concerned.

• Similarly, make sure that you interview potential volunteers but that the interview format is appropriate to the tasks in hand and seeks to establish their needs as much as yours.

• Be clear about how will you deal with offers of voluntary work from people whom you do not consider suitable for the role in question.

• Be clear about how will you deal with a situation where, for whatever reason, a potential volunteer cannot provide you with a suitable reference.  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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• Be clear about what other checks will you insist on. (DBS checks are obligatory for volunteers working with vulnerable people, but unlike for employees, they are free.)

• You should draw up a volunteer policy which outlines your procedures for induction, training and on-going involvement with your organisation. Volunteers should share many of the benefits, other than pay, of paid workers and should be equally important in communication and supervision arrangements.

You can find more information and advice about volunteering at www.volunteering.org.uk.

Useful Addresses and websites 1)

PERS helpline 01924 428030 or admin@pers.org.uk or see www.pers.org.uk

2)

Government web site www.gov.uk

3)

BIS (formerly [BERR] Business, Enterprise and Regulatory Reform) www.bis.gov.uk

4)

HM Revenue and Customs www.hmrc.gov.uk

5)

ACAS (Advisory, Conciliation and Arbitration Service) www.acas.org.uk.

6)

Citizens Advice Bureaux (CABx), www.adviceguide.org.uk

7)

Working Families - www.workingfamilies.org.uk.

8)

TUC (Trades Union Congress) www.tuc.org.uk.

9)

VolResource www.volresource.org.uk

10) Volunteering www.volunteering.org.uk.

11) Discrimination The Equality and Human Rights Commission www.equalityhumanrights.com.

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12)

Immigration law UK Border Agency Lunar House 40, Wellesley Road Croydon CR9 2BY 0870 606 7766(Immigration) Minicom: 0800 38 98 289 www.ukba.homeoffice.gov.uk or the the Employers' Helpline 0300 123 4699.

You can find information about foreign students’ eligibility to work in the UK on the British Council website, www.educationuk.org or on the UK Council for International Student affairs, www.ukcisa.org.uk.

13)

Data Protection Act Information Commissioner’s Office www.ico.gov.uk.

14)

Criminal records The Disclosure Scotland website is at: http://www.disclosurescotland.co.uk/ Disclosure Scotland Telephone Helpline : 0870 6096006 Email : info@disclosurescotland.co.uk Address: Disclosure Scotland, P.O. Box 250 , GLASGOW , GS51 1Y Discourse and Barring Service http://www.homeoffice.gov.uk/agencies-public-bodies/dbs/ For personal Subject Access Requests from the police computer, you can find information from www.westyorkshire.police.uk

The full list of rehabilitation periods is available from:  Copyright PERS This document may be reproduced in whole or in part subject to acknowledgement of source 13th Apr 2015

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The Stationary Office PO Box 29, Norwich NR3 1GN or from their on-line bookshop, www.tso.co.uk. Search for ‘‘The Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011’.

The recruitment & selection pack includes: Expenses Claim Holiday Induction Mileage claim Probationary reviews Recruitment and selection procedure Recruitment Recruitment supplementary material Time sheet .

Part of the PERS Pack series - the other six packs relate to: Disciplinary Performance Management New starter

Grievance Recruitment Work Life Balance

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Pay & Employment Rights Service, Suite 35.

Batley Business Park, Technology Road Bradford. WF17 6ER

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