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Employers should have transparent recruitment policies that conform to best practice guidelines and meet the requirements of Equality Act 2010 legislation.
Successful candidates should be selected on merit only. An employer who applies other criteria when recruiting leaves themselves open to claims of unfairness and even discrimination.
The Advisory, Conciliation and Arbitration Service (ACAS) provides useful best practice guidance on fair and open recruitment and selection applicable to employers in the NHS and independent sector. If you work in Northern Ireland, please see the Labour Relations Agency website for guidance.
If the employer is part of the NHS, section 31 of the AfC handbook applies and describes systems for recruiting, developing and promoting people based on merit.Back to contents
An employer is not obliged to advertise job vacancies externally.
When there is an internal job vacancy or secondment available there is no statutory obligation to advertise the job. Employers may simply pick a member of staff without a transparent selection process. It is considered best practice to have a robust selection process as staff may claim they have suffered unlawful discrimination if they did not have the opportunity to apply for the job.
It is also considered best practice to advertise internal vacancies to all staff, as the advertising of new opportunities opens up the pool of potential applicants. This may include under-represented minority groups employed by that employer. A strong recruitment process will increase the likelihood of the best person for the job being selected.
In a redundancy situation, employers will often limit certain job vacancies to those who are otherwise at risk of being dismissed by reason of redundancy. This enables the employer to offer 'suitable alternative employment' to the potentially redundant employee. There is no legal requirement to do this but it is considered good practice.Back to contents
Your employer is not obliged to give you time off to attend external interviews, unless it is due to a redundancy situation.
If you are taking sickness absence and wish to attend an interview, it is advisable for you to book annual leave in order to attend. If this is not possible then discuss the matter with your GP and then your employer. If you attend an interview while signed off sick your employer could potentially take action against you.Back to contents
Any agreements made during the interview process regarding the terms and conditions of your employment should be put in writing before you accept the job. If there is nothing in writing stating the pay (or other terms) agreed at interview, you have no evidence of the agreement.
If the staff who interviewed you acknowledge they offered you specific terms at interview, you may be able to argue that this is a binding agreement. Even if this is acknowledged, the staff who interviewed you may not have had the authority to set your rate of pay or other such terms.
You should discuss any concerns with your employer informally. If you cannot resolve this informally, and you have evidence that an agreement has been breached, you may wish to raise a complaint. Contact us for advice before you do so on 0345 772 6100.Back to contents
The Equality Act 2010 places restrictions on the way in which prospective employers can use information about someone’s health or disability when considering them for a post. Prospective employers are generally prohibited from asking questions about someone’s health or disability prior to offering them a job. This includes questions about previous sickness absence. There are a small number of exceptions to this rule. The government provides detailed guidance on this area.
Guidance from the Equality and Human Rights Commission indicates that questions about sickness absence can be asked after a candidate has been offered the job (either conditionally or unconditionally) or has been placed in a pool of successful candidates. Even then, the purpose of these questions should only be to clarify that a person’s health or disability will not prevent them doing the job and to enable the employer to consider whether ‘reasonable adjustments’ can be made.
A reference that indicates higher levels of sickness absence may warrant further investigation - preferably using qualified occupational health practitioners - to assess suitability for the post in question. Previous sickness absence is not necessarily indicative of an inability to do a different/new job and employers who are considering withdrawing a conditional job offer should be mindful of disability discrimination. Read on for information about withdrawal of a job offer.
Please note: the Equality Act 2010 has not been adopted in Northern Ireland and therefore separate pieces of legislation remain in force. For further information on variation and harmonisation see the Equality Commission Northern Ireland website. In particular, see the Commission’s briefing note ‘The Gaps between GB and NI Equality Law’ (January 2011) and the ‘Fair Employment Code of Practice’.Back to contents
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Employers should ensure that judgements made at interview are not based on subjective and wholly irrelevant impressions. It is good practice to prepare questions based on a person specification devised specifically for the post, and to apply an objective scoring method in response to the interviewee’s answers.
Employers will normally give feedback. If you feel you were treated unfairly, you should ask for the reasons why you were not successful.
If you are unsuccessful in gaining an internal post and feel you have been treated unfairly, please contact us before taking any formal action. If you feel you have been unlawfully discriminated against, read our guidance on discrimination and call us for advice on 0345 772 6100.
If the job offer was conditional, the employer is entitled to withdraw the job offer if the conditions were not met. These conditions may include satisfactory references, or a Disclosure and Barring Service (DBS) check being passed (formerly known as Criminal Records Bureau checks).
If the job offer was unconditional and you agreed to take the job, you may have a claim in law for wrongful dismissal. There is no absolute requirement for you to have submitted a written acceptance of the job to claim wrongful dismissal. If your acceptance of the job was verbal it is very difficult to prove that you had an agreement with the employer. For further information please see our advice on discipline and dismissal.
Even if you are able to claim wrongful dismissal, any compensation awarded to you is likely to be low. Compensation will be higher if your contract stated that your employer had to give a long notice period to end your contract. You should seek detailed advice from us if you are considering such a claim.Back to contents