Recruitment And Selection – Legal Risks And Discrimination

Overview of Recruitment and Selection in the UK

Recruitment and selection are two words which are often used interchangeably in context of the hiring of employees. It is a process by which the best possible candidate for a function or a job is selected after assessing the skills of such individual in context of the role for which the person is being hired (Martin and Whiting, 2016). It is a very crucial process and has to be carried with utmost care so that the person, who is finally hired for the job, fits the role in the best possible manner. The recruitment and selection process has to be undertaken on the basis of the applicable laws, the industry standards and leading practices of human resources. In UK, there are different employment laws which have to be taken care of while this process is carried on (Kemp Little, 2014). For instance, an equal opportunity is to be provided to each candidate and no discrimination is to be undertaken on different basis, based on the different acts like Equality Act, 2010.

Each action which is taken in the recruitment or selection process has to follow the different employment related laws of UK and even that of EU. The case study reveals that a recruitment and selection process had been adopted by ABC Ltd in order to find a replacement for Steve Brown. And in this regard, four candidates went through the recruitment and selection process. However, there were legal risks which charred this process for all four candidates, and these have been summarized below.

Discrimination refers to a person a person being given less or higher preference in comparison to another person, owing to a particular reason, for instance age, gender, religion, colour and the like. In UK, the discrimination on basis of gender/sex is protected through Equality Act, 2010, and this act also protects from discrimination on the basis of age. The prohibition has been imposed through this act on both direct and indirect discrimination on the basis of prohibited characteristic, which includes both sex and age (Sargeant, 2013). Apart from this, the Equal Treatment Directive 2006/54/EC also require equal opportunities to be given to men and women and them to be treated in an equal manner in the matters of occupation and employment (Official Journal of the European Union, 2006). In Rajaratnan v Care UK Clinical Services Ltd UKEAT/0435/14/DA, the appeal against indirect sex discrimination was upheld with costs. When it comes to the age discrimination, apart from the Equality Act, the Employment Equality (Age) Regulations 2006 also puts a restriction on such discrimination (Employment Cases Update, 2017a). In Jessemey v Rowstock Ltd and anor [2014] EWCA Civ 185, the claim of age discrimination was upheld by the court (Swarb, 2017).

Legal Risks and Discrimination in the Recruitment and Selection Process

In the case of Joan, she had been out rightly rejected by senior managers on the basis that she was a woman. Her application was not even considered owing to the fact that she was younger than the other people, and owing to the notion that a young woman would not be able to effectively manage the older male team. Hence, in her case, she was discriminated against on two bases, i.e., age and gender.  In this case, Joan can thus raise an issue of both age discrimination and gender discrimination against the company.

The Equality Act 2010 is a key piece of legislation in UK which also prohibits any kind of unlawful discrimination against the employees, trainees and job seekers on the basis of the elements of their race, for instance their colour, nationality, the manner of speaking, and on the basis of perceptions associated with race. A person would be deemed to be victimized at work when they are racially discriminated on during the selection for promotion and recruitment (ACAS, 2017). In Kwele-Siakam v The Co-operative Group Ltd UKEAT/0039/17/LA it was held by the EAT that the claimant had been victimized on the basis of race and thus allowed the appeal (Employment Cases Update, 2017b).

As Aldo is originally from Milan and has poor English skills, he was not given the promotion despite his credentials and achievements. And on this basis, Aldo can raise a claim of racial discrimination and victimization at workplace.

As has been discussed earlier, a case can be made under the Equality Act, 2010 for age discrimination. In McCloud & Ors and Mostyn & Ors v The Lord Chancellor and Secretary of State for Justice & MoJ (Case 2201483/2015; 2205075/2015), the claim of 210 judges was upheld by the ET as the Judicial Pension Scheme was deemed to be less favourable treatment as a result of their age, and in some instances, based on sex and race (Employment Cases Update, 2017c).

If David here makes a claim against the company for age discrimination, the same has a chance of being successful owing to the quoted case. This is because he was not given the promotion as he was 61 and was soon to be retried, even when he held the most experience amongst the four candidates.

The Equality Act prohibits discrimination on the basis of marriage and civil partnership. So, the employees have to be given equal opportunity to every person when it comes to recruitment of a person. A person relation cannot be used to favour or discriminate against a person (Wadham et al. 2012).

ABC Ltd – Case Study Analysis

In this case, the remaining three candidates can raise a voice against the appointment of Mike on the basis of him being married to the niece of the Finance Director and also as he played golf on regular basis with Paul, who was the Chief Executive and lead in recruiting a replacement for Steve. The three individuals thus can make a claim of discrimination against the company, owing to their personal reasons, and owing to the favour of the company towards Mike.  

1. Payment Arrangement

National Minimum Wage Act 1998 provides that a minimum wage has to be provided to the employees. Commission cannot be substituted with salary and a minimum salary has to be paid to the employee (Smith and Baker, 2015). Also, the employment contracts cover the salary element and for changing this contract, approval from the employee is necessary (Hardy and Butler, 2016). The new system adopted by Mike with immediate effect not only breaches the quoted law, but also the employment contracts drawn.

1. Replacement Policy

In order to adopt this policy, the unemployment compensation has to be provided to each employee who is dismissed. Also, this can result in claims being raised against the company as performance cannot be deemed as the sole factor, particularly when faced with tough times.

1. Medicals

This policy can open up claims of discrimination owing to the personal characteristics of a person or their smoking habits. For this, a claim can be made as disability discrimination, as was upheld by the c in the case of in Kaltoft v Kommunernes Landsforening Case C-354/13. So, a claim of unfair dismissal can arise from such policy (Bowcott, 2014; Court of Justice of the European Union, 2014).

The preceding part highlighted that a claim under Equality Act, 2010 and the other relevant legislations can be made by Joan, Aldo and David, owing to the discrimination against them on different grounds and owing to the favour towards Mike due to his personal relations with the key personnel of the company. Apart from this, the plan of action to be adopted by Mike can also be claimed upon. However, each of these claims can be rebuffed owing to weakness in each case. This part highlights the defences which can be picked by the company in this regard.

In this case, the company can cite the inexperience of Joan in comparison to the other members of the team. The company can show that the older male teammates hold more experience and thus, would be able to perform the job better than Joan. A key reason which can be cited for not selecting Joan stems from the ‘user group’ meetings which are held for the esteemed customers of the company. This group is used to be entertained by known faces, which Joan is not. Hence, her claim can be attempted to be weakened. Though, the chances of this happening are quite low owing to the presence of direct age and sex discrimination.

Discrimination against Joan Keenan

In Kelly v Covance Laboratories UKEAT/0186/15/LA it was highlighted that the employer can ask the employee to speak proper English and this would not be deemed as discrimination (Employment Cases Update, 2017d). If the job requires a person to speak proper English, the employer cannot be deemed as discriminating against the employee. In case of Aldo, it can be shown by the company that his English skills are quite poor and writing of reports in regular manner requires proper communication skills. As a sales lead, he has to interact with clients and improper English skills would not be acceptable and can even impact the sales of the company.

In the case of David, a chance of discriminatory claim being made by David is less likely. This is because he wants to retire and also would need time to care for his sick wife. He himself agrees that he would not be able to give his best and would not be able to do justice to this role. Hence, his claim is not likely to be made, nor going to be successful.

The appointment of Mike cannot be simply discarded for his marriage and civil partnership and if the same is done it will be discriminatory on him. He is the best possible option in terms of his innovative ideas and being experience holder. Hence, a claim where his relationship is claimed as a reason for discrimination would also fail.

1. Payment Arrangement

The chances of this claim being a success are quite high as there is a need to continue with paying basic salary to the employees and the same cannot be replaced by commission. Also, the same has not been amended in the contracts of the employees and applied with immediate effect, which would increase the chances this claim being a success.

1. Replacement Policy

This policy, although can be claimed against, but has different benefits in terms of the employees being motivated to work better. By bringing new talent on regular basis, this policy can be effectively defended.

1. Medicals

The company can show that it is concerned about the health of its employees and that it is not dismissing any employee, and instead is working on making them healthy and fit.

An employee relation refers to the efforts of the company which are undertaken for managing the relationship between the employer and the employee. When a good employee relations program is adopted in the company, the company is able to provide a fair and a consistent treatment to all of its employees which allow the employees in being committed towards their job and also in being loyal to the company (Gennard and Judge, 2005). These are typically deemed as the human resource strategies for making certain that the people of the organization are used most effectively for attaining the goals of the company. The companies have to adopt such recruitment and selection strategy which helps the company in attaining their objectives (Argue, 2015). In this regard, there is a need to ensure that the proper laws are followed; the needs of the employees are considered; a proper remuneration structure is chalked out; reasonable flexibility is given to the employees; and equal opportunity is given to each and every candidate (Aylott, 2014).

Aldo Viscida’s Rejection due to Poor Written English

The case study given shows certain employee relations issues particularly with regards to the future action plan which has been drawn by Mike. This is because the ideas of Mike are quite aggressive and can also be deemed as imposing. Basing the entire earning of an individual on commission is an unfair approach and instead, there was a need for Mike and other senior managers to adopt an approach where the salary of the employees is continued. Though, this can be coupled with a different commission based strategy, for instance, an increasing commission based approach where the incentives are linked with volume, in brackets. A stringent approach could otherwise make the employees leave the company. This proves particularly true with regards to the regular medicals which the employees are forced to undergo. A person may be obese owing to a certain medical problem or may have difficulty in quitting smoking. Imposing fitness can thus prove costly for the company. Also, only performance being deemed as a measure threatens the job security of a person, which can result in the company losing its employees, when it already faces tough competition from industry giants.

Conclusions

From the discussion carried in the previous segments, it can be concluded that recruitment and selection process is a very crucial task for the human resource department of any company. The role of human resource department is enhanced as the selection of right candidate is a key choice. A lot of time and effort is involved in this process and thus there is a need to select the best candidate. The case study highlighted how different problems can be raised when it comes to the recruitment and selection of a person, particularly when it relates to internal hiring of a person for replacing another employee. The case highlighted how the company and the human resource department could have to face flak owing to discrimination on different grounds including sex, age, race, disability and the like. Thus, it becomes the duty of the HR to ensure that the recruitment and selection process has no ounce of discrimination against any party or it may result in a case being made against them. To conclude, there is a need to ensure that this process is free of any kind of bias and discrimination.

The discussion carried above provided valuable insights for the future practices which have to be adopted by ABC Ltd in order to reflect the best practices under the employment law, as well as under the HRM field. And on these bases, certain recommendations have been drawn.

1. The first and foremost requirement is for the companies to adopt the employment laws and integrate the same in the recruitment and selection procedure.
2. There is a need to ensure that a proper policy is drawn which chalks out the expectations from the people and the job profile so that the people can know if they have the relevant experience to get the job.
3. There is a need to employ the industry a standard when it comes to recruitment polices and also adopt the guidance by bodies like CIPD, i.e., Chartered Institute of Personnel and Development and ACAS, i.e., Advisory, Conciliation and Arbitration Service (Martin and Whiting, 2016).
4. The policies have to be drawn in a manner where the needs and situations of the employees in general are upheld. A deliberate imposition of harsh strategies could result in high labour turnover.
5. There is also a need to make the staff aware about the different rights which they have under the different UK employment laws, for instance collective bargaining, freedom of association and the right to be treated equally (Mantouvalou, 2012).

David Constant’s Age and Personal Issues

References 

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Mike Replica’s Appointment and His Ideas

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