The lawful management of the recruitment and appointment process

Managing recruitment, selection and appointments lawfully. The "Equality Act 2010" is the primary legal document that controls the procedure for finding, choosing, and appointing employees. The law prohibits discrimination against people based on what it calls "protected characteristics," which include things like a person's gender, sexual orientation, religious affiliation, and handicap, among other things. Direct, indirect, associative, and viewpoint discrimination are the types of discrimination covered by the act, according to its definitions. The act seeks to provide a unified antidiscrimination statute that is both powerful and supports the idea of employment equality. Therefore, the act serves as a guide for employers during the recruitment process since they ought to ensure that they comply with the provisions of the law. (Haines Watts, 2015)

In compliance with this law therefore, appropriate methods and policies have to be instituted in the recruitment process. To begin with, during job analysis there should be a clear statement of the essential roles of the job, stating clearly the tasks to be carried out and the skills required of the employee to complete those tasks.

In advertising the job, compliance with the law can be secured by ensuring that provisions of antidiscrimination laws are adhered to. To begin with, the advertisement should have a wide coverage, with the main criteria being possession of appropriate qualifications. It would be against the antidiscrimination laws to ask that applicants be of a certain race, gender or religion for example unless meeting such requirements would be a genuine occupation requirement. In the case of a beauty pageant for example, a requirement to be of the female gender would be acceptable as a genuine requirement. In addition to that, the advertisement should not appear to discriminate against persons with disability by implying they would face limitation in the job owing to such disability or expression of the employer’s unwillingness to accommodate such people. Discrimination based on age should also be avoided by refraining from statements that specify a certain age, age group or period in work unless justified by needs of the job. In use of application forms to facilitate selection, such forms should only seek information essential to the job and the selection process, avoiding those that may be discriminatory such asking for an individual’s sex orientation or gender when that clearly has no relation to the job. An example is The “Willmott v Woolworths Ltd” (2014) case, in which Willmott accused Woolworths limited of discrimination for requiring job applicants to provide information on their birth date and gender. The tribunal ruled in favor of the applicant noting that “an applicant’s age and gender were not reasonably required for the job in that scenario.” (Power, 2015)

In carrying out interviews applicants who may need some special arrangement of the process such as the disabled should be considered in selecting an easily accessible venue for interviews. Ignorance of such considerations especially if aware of an applicant’s need due to disability could amount to discrimination. (NIBUSINESSINFO.CO.UK, n.d.)

Following conclusion of the recruitment process, the employer and the employee enter into a relationship which is governed by the “law of contract”. The agreement between the two parties outlining the conditions of employment, responsibilities, rights compensation and other benefits accruing from the job becomes a contract, making theirs a contractual relationship. The contract may be in written form, verbal agreement or containing portions of both. The terms therein may be explicit, meaning that they are clearly stated or they may be implied.

The contract is deemed to have commenced once the employee accepts the offer, thereby the contract becoming binding to both parties who must abide by it until such a time when the contract ends via the various mechanisms. These may include, issue of a notice by either of the parties or if there is an alteration in the terms upon agreement between the parties involved. (GOV.UK, n.d.)

Activity 2

The main law meant to ensure that employees’ safety and health are safeguarded is the “Health and Safety at Work Act 1974” Under that law, the provider of the job ought to ensure that an evaluation of risk of the job is carried out and written if the number of employees is five or more. Thereafter, arrangements should be put in place for implementation of measures to mitigate such risks. The management is required to make appointments of qualified personnel to deal with arising issues as well as setting up emergency procedures to be followed as and when necessary. It is also a requirement that employees be well informed and trained as well. (Health and Safety Executive , 2013)

Under the law of contract, one of the implied duties of an employer to an employee is the “Duty to care” which if neglected or violated could have legal implications with the employee seeking legal redress in an employment tribunal. An example is the case of “John Walker vs Northumberland County Council” Walker, a social worker, requested for an assistant following leave due to stress. The assistant however was offered occasionally. Later on Walker suffered a mental breakdown and had to retire. He sought legal redress and the court ruled in his favor stating that “an employer owes a duty to care to their employees to take reasonable steps to protect employees from risks to mental health that maybe foreseeable.” (John Edward Walker vs Northumberland County Council., 1994)

In evaluating the scenario where an employee has been bullied as a result of not having membership in a trade union, it is worth noting several facts of the scenario. To begin with the employee has a right not to belong to the trade union according to the principle of the law of “Freedom of association” which states that “no one should be compelled to belong to an association.” Secondly, by being an employee of the organization, the law of contract require that the employer exercises the duty to care principle in protecting such an employee against such bullying. The compromise in the employees’ health to the point of being on medication is provides sufficient grounds for litigation against the employee where the employee may seek compensation as precedent was set in the John walker vs Northumberland county council case. The management therefore ought to step in and address the issue by ensuring protection of the employee at the workplace. For example, a meeting may be called in which a warning is given to employees doing the bullying including their dismissal if necessary for breach of employment contract through gross misconduct.

Finally, it is important to highlight the principles of the law regarding freedom of association. The law provides that every individual has a right to freely associate and assemble and that he shouldn’t be forced into any association or assembly as that would be a violation of his rights. (United Nations, n.d.)

Activity 3

The law of unfair dismissal specifically protects employees only and does not provide protection for individuals who are self-employed. For an employee to qualify for protection under this law, they must be able to demonstrate that they have had at least two years of continuous employment, a period in which the one week of employment termination notice is included in its calculation. Despite this protection, the law also provides reasons for which a dismissal would be fair. To effect such a dismissal therefore, the employer ought to be able to demonstrate one or more of the reasons. Such reasons include: redundancy, absence of capability, misconduct and if it would be unlawful to continue such an employment under the prevailing circumstances. (Halson, 2014)

In order to minimize chances of an employment tribunal claim by the employee, the employer needs to understand and ensure that certain criteria are met before dismissal. With regard to misconduct, the offence committed to necessitate dismissal must not be a first time incident but rather it should be demonstrable that a warning had been issued for example in written form. The exception to this rule is in a case of gross misconduct on the part of the employee. On the other hand, capability would qualify as a ground for dismissal whereby the employee’s abilities do not measure up to the requirements of the job. However, for such dismissal to be effected the employee ought to have been informed of his incapability and dismissed only after he fails to improve following efforts to the effect and sufficient time to do so. (Halson, 2014)

In the case of the employee against whom there are suspicions of being under the influence of illegal drugs when coming to work, the grounds for dismissal would be gross misconduct. In effecting such a dismissal, care should be taken to follow the relevant procedures in order to minimize chances of having to stand in defense before an employment tribunal. The process should begin with issuance of an invitation to meeting aimed to discuss disciplinary action against him. The invitation should state the reason for such a meeting and the possible disciplinary action to be taken which is dismissal. The employee may subsequently be suspended for the duration of the proceedings. The next stage of hearings should ensure fairness as there should be no bias or a pre-determined result. The next stage involves evidence, where the allegations of reporting to work under the influence of narcotics are spelled out and evidence adduced to corroborate such allegations. The employee should then be given an opportunity to respond to the allegations levelled against him and reasonably explain his actions. If not accorded this opportunity, he could take legal action against the employer. The employee should be aware of his right to appeal the decision for his dismissal and also accorded an opportunity to lodge such an appeal before the decision for dismissal is enforced. (Gorry, 2015)

In addition to that, the employee ought to be informed of and allowed to exercise his right of representation before the disciplinary meeting and its hearings. The representative chosen could be an official of the workers’ union, a colleague or even a lawyer depending on the circumstances and the employee’s preference. This legal provision is made in the “Employment Relations Act 1999” which is related to the “1977 acas Code of practice” which requires that, an individual who is accused, be given a chance to defend himself or explain before a decision on his dismissal is arrived at. He should also be made aware of his rights under the circumstances of which the right to have a representative is one of them (Saundry, et al., 2011)







References

Gorry, T., 2015. Fair Procedures in Dismissing an Employee. [Online] Available at: https://employmentrightsireland.com/fair-procedures-in-dismissing-an-employee-the-6-steps-you-need-to-know/[Accessed 17 September 2017].

GOV.UK, n.d. Your Contract and Working Hours. [Online] Available at: https://www.gov.uk/employment-contracts-and-conditions[Accessed 16 September 2017].

Haines Watts, 2015. Recruitment Procedures: Employment Law. [Online] Available at: https://www.hwca.com/app/uploads/2015/02/Recruitment_Procedures_Employment_Law.pdf[Accessed 16 September 2017].

Halson, J., 2014. Rights at work: Unfair dismissal. [Online] Available at: http://www.rightsatwork.co.uk/employment-law/unfiar-dismissal.html[Accessed 17 September 2017].

Health and Safety Executive , 2013. Health and Safety Regulation. [Online] Available at: http://www.hse.gov.uk/pubns/hsc13.pdf[Accessed 17 September 2017].

John Edward Walker vs Northumberland County Council. (1994).

NIBUSINESSINFO.CO.UK, n.d. Emloyment and Skills: Equality and Diversity. [Online] Available at: https://www.nibusinessinfo.co.uk/content/discrimination-during-recruitment-process[Accessed 16 September 2017].

Power, C., 2015. Case Law. [Online] Available at: http://www.employmentlawhandbook.com.au/case-law-employer-ordered-to-pay-damages-for-discrimination-during-recruitment/[Accessed 17 September 2017].

Saundry, R., Antcliff, V. & Jones, C., 2011. Acas: Research and Evaluation. [Online] Available at: http://www.acas.org.uk/media/pdf/d/n/0608_Accmpnmnt___rep_in_wplace_D_G-accessible-version-July-2011.pdf[Accessed 17 September 2017].

United Nations, n.d. Universal Declaration of Human Rights. [Online] Available at: http://www.un.org/en/universal-declaration-human-rights/[Accessed 17 September 2017].