Legal Insight: Expect the unexpected when hiring

susan.edwards.1
Director of HR
Minutes
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Most HR departments already have efficient recruitment policies in place that outline the whole process, from the initial decision to hire through to making an appointment.

If this sounds like you, you may be feeling quite smug that you’ve got the process more or less sorted out - and in part, you could be right.
 
 
The problem is that there will be times when you have to deal with the unexpected and you may even have to face a nightmare scenario of your own. However, pondering on this and other potential nightmare situations will help you to plan ahead so that you can cover most circumstances. Let’s look at a few examples:
 
1. Making a job offer
 
The challenge
 
When making a job offer, many employers make it “subject to satisfactory references”. But there is an element of subjectivity here, in that what I find acceptable, you may not. The question is, therefore, what standards are you using to measure what constitutes ‘satisfactory’ or not, and for whom?
 
Unless you are explicit about this, you can find yourself in hot water. Even if a reference is obtained at the shortlist stage, what happens if it is poor, but the candidate claims that they have been victimised by a former employer?
 
What happens if no reference is actually produced or a former business has closed and the referee cited cannot be traced? What constitutes fair in these sets of circumstances?
 
There may even be occasions in which you could expose yourself to discrimination claims. Even if you feel that your position could be defended successfully, it is important to take into account any potential damage to reputation (no smoke without fire?) and just the sheer time that has to be spent dealing with such situations.
 
The verdict
 
The best way to avoid this situation is always, as a matter of course, to include a short probationary period when offering someone a job. This way, if references do not turn out as expected (or are not produced at all), you can deal with any problems as part of an individual’s probationary review.
 
2. Announcing a job offer
 
The challenge
 
Many people will have felt some sympathy for Mr Brookes on blogging about getting a new job. While he didn’t have the authority to use someone else’s logo in his announcement due to copyright issues, it could be argued that he was just “celebrating” his job offer.
 
However, there may be circumstances when it is inappropriate for such an offer to be made public until a particular date (if you are replacing someone who is retiring and that retirement has not yet been officially announced, for instance).
 
There may also be certain aspects of the role that you would prefer to keep confidential (in case the applicant is working for a rival organisation and is actually on a fishing expedition to gain information about your client base, for example).  
 
The verdict
 
To avoid getting it wrong here, never assume that an applicant knows your views or what you find acceptable and unacceptable. As part of the recruitment process and, most certainly, when making and discussing a job offer, clarify what constitutes acceptable behaviour and only then disclose details about what exactly the role entails.
 
While you might not want to go so far as an “Official Secrets Act” process, you may want to include a very simple non-disclosure agreement that all candidates must sign before the full details of the role are provided.
 
For example, a role that requires the utmost confidentiality could require that applicants do not disclose the full details, whether or not they accept the position.
 
But it is not necessary to draft complex legal documents to achieve this. A few sentences that form part of your template application documents and job offer letter will be adequate.
 
It would be advisable to obtain the applicant’s signature to validate the agreement, however, by “dating, signing and returning” one copy of the job offer letter to you, for example.
 
3. Interacting with job applicants via social media
 
Social media can be a great way to hear about potential new employees and also to advertise job vacancies. It is usually less formal than other business communication channels and, while it may sometimes be easy to forget this fact, please never do.
 
The employer who enquired about a “hot” applicant is probably still remembering it. The point is that you shouldn’t be lulled into a false sense of camaraderie.
 
Social media has generated lots of software to help you get the most out of the experience. But beware of software filters that enable you only to follow males, for example, or to make certain posts visible to people within a certain location. The problem is that in a recruitment context, such activity may amount to discrimination.
 
The verdict
 
Create professional social media accounts that are looked after consistently and employed in a business-like manner. Use personal rather than business accounts to talk to friends.
 
4. Undertaking DIY investigations using social media
 
The challenge
 
Recruiters and employers are now starting to use social media to find out more about job candidates. But there are two important things to consider:
 
  • does your recruitment policy cover this?
  • how are you using social media?
 
The problem is that using the channel in this way could give rise to discrimination claims. For example, if a rejected applicant is wheelchair-bound and you discover this situation from a social media site, the applicant is within their rights to make a claim.
 
The verdict
 
Ensure that your recruitment policy:
 
  • covers your use of social media
  • explains what criteria you will apply or what you are looking for when using the channel.
 
What all of this means is that, while unexpected things can always happen, nightmare scenarios can also be avoided by planning ahead. But although it may seem like obvious advice, remember that if something untoward happens, never react immediately without thinking it through.
 
Instead always stop and take some time and some advice (having an outside perspective and sharing views really does help) in order to ensure that you handle each situation that comes up as effectively as possible.  

Susan Edwards, director of legal services firm, HR in Minutes.

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