The Recruitment – the Legal issues Discrimination Data Protection Right to work in the UK
Recruitment - Discrimination Protection for job applicants from discrimination or victimisation in: Arrangements for interview/recruitment Terms of employment offered Refusal to offer employment Harassment
Recruitment - Discrimination Protected characteristics: Age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation Advertisements
Recruitment – Data Protection Candidates should be made aware their personal data is being held The reason (ie the recruitment process) Duration (eg 2 years) Unsuccessful candidates Interview notes Subject access request Transfer of information to personnel file
Establishing the Right to work in the UK Immigration, Asylum and Nationality Act 2006 ‘An employer negligently hires an illegal worker’ Fine of up to £10,000 Defence
Establishing the Right to Work in the UK Criminal offence ‘An employer knowingly hires an illegal worker’ Custodial sentence of up to 2 years Unlimited fine
Establishing the Right to work in the UK Checking documents Before employment List ‘A’ and ‘B’
The Recruitment Process ‘The Bolton Pensioner’s Jogging club seeks a new Treasurer; she must be mature, of UK origin, heterosexual and a regular churchgoer. The successful candidate will enjoy jogging, needlework and will have a cheerful and sunny disposition.’
The Recruitment Process Identifying the vacancy Job description and person specification Advertising Inviting applications (either using application forms or other means of applying) and dealing with speculative applications Undertaking equal opportunities monitoring Shortlisting and interviewing Making an offer of employment Conditions to be satisfied? Inducting the new employee
The Offer of Employment Conditional Offers? References Medical examinations Health questionnaires? CRB checks Drug & Alcohol testing Withdrawing an offer?
The Offer of Employment Check qualifications Ask to see originals and take copies Permission to work in the UK? Ask for documents Ask everyone
Do’s & Don’ts Disability Reasonable adjustments Asking health related questions? Age Monitoring Marital status Childcare responsibilities
Do’s & Don’ts Training of managers Keep records of who received training and when Prepare interview questions Keep interview notes Record non-discriminatory reason why candidate was not successful
Recruitment – Defending your position Training Equality & Human Rights Commission (EHRC) – Employment Statutory Code of Practice Creating a paper trail Applicable policies/procedures, job description, person specification, selection criteria, any written test, notes of the shortlisting process, interview questions, notes of interview, minutes of any interview panel discussions or decisions following interviews
Criminal Records Checks Old system of Criminal Records Bureau (CRB) checks Disclosure and Barring Service (DBS) Required applications? Permitted applications? Care Quality Commission Outcomes Portable DBS Checks
CRB Checks Established in March 2002 Concerns about the safety of children, young people and vulnerable adults Replaced system of checks dealt with by police forces Disclosed criminal records and, if requested, details about whether applicant ‘unsuitable’ for role Sent simultaneously to applicant and employer
Reform Disclosure and Barring Service Criminal Records Bureau Independent Safeguarding Authority 1 December 2012 Why is it necessary?
Application Types Standard DBS Check Spent and unspent convictions, cautions, reprimands, final warnings Enhanced DBS Check As above - plus any additional information held locally by police forces that is ‘reasonably considered’ relevant to the post applied for (formerly ‘might be’) Enhanced DBS with lists Check Includes check of DBS Barred Lists Children Adults
GP Services? Necessary to consider who you must, may or cannot submit to a DBS Check – different rules for different staff Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 Working with children Working with vulnerable adults Medical Practitioner /Nurse / Psychologist Provision of health services and access to service users in the course of their duties
GP Services? Safeguarding Vulnerable Groups Act 2006 Amended by Protection of Freedoms Act 2012 Lists ‘Regulated Activities’ which require Enhanced DBS with Lists Check: - Providing health care Providing personal care If not ‘Regulated Activity’, may still apply for Enhanced DBS Check or Standard DBS check Former definition of ‘Controlled Activity’ (covers most support staff) Access to patients?
Care Quality Commission Outcome 12 – Requirements relating to workers Refers to CRB checks, Regulated Activity checks and ISA Registration Practice needs to be satisfied that they have undertaken the requisite checks on staff Evidence available for inspection
Online Update Service and Portability Commencing March 2013 Applicants can opt-in for their certificate to be updated electronically Aids portability, especially where applicant has multiple jobs Free for volunteers, fee otherwise No new information?
Legal Challenge R (T and others) v Chief Constable of Greater Manchester and others  Challenge to current system of disclosure under Article 8 of the European Convention on Human Rights (Right to Privacy) Factors which are not considered: - Seriousness of offence Age of offender at the time of the offence Sentence imposed Time elapsed since the offence Any re-offending The nature of the work applied for Home Office appealing the decision
Keeping Personnel Records The Data Protection Act 1998 states: ‘that personal data should not be kept for longer than is necessary for the purpose for which it is processed’ Information Commissioner’s Employment Practices Code
Keeping Personnel Records Type of record ReferenceRetention Recruitment recordsThe Information Commissioner: Employment Practices Code Part 1 6 months from notification of unsuccessful candidates Personnel and training records N/A6 years after employment has ended Written particulars of employment, contracts of employment, and changes to terms and conditions N/A6 years after employment has ended
Keeping Personnel Records GG Type of record ReferenceRetention Working time opt- out forms Regulations 5 and 9, Working Time Regulations 1998 Two years from the date on which they were entered into Right to work in the UK Immigration, Asylum and Nationality Act 2006 2 years after employment has ended Checks on criminal record Rehabilitation of Offenders Act and Information Commissioner's Employment Practices Code Should be deleted following recruitment process unless relevant to ongoing employment. Once the conviction is spent, should be deleted unless it is an excluded profession
Important to set out the Practice’s expectations Express Terms Implied Terms Incorporated terms S1 Employment Rights Act 1996 – required terms BUT note CQC outcome 12 (Workers) – Evidence Contracts of Employment
Must have….. Names of Employer / Employee Commencement date Continuous service? Remuneration – rate/scale and interval -Overtime? Hours of work Holiday Entitlement and Pay S1 ERA 1996
Must have….. Sickness terms, including pay Pension schemes Notice required from both parties or fixed term period Job title or brief description of role Place of work Collective agreements? S1 ERA 1996
Must have….. Work outside the UK for more than One month? -Period -Currency the employee will be paid in -Any additional pay or benefits -Terms and Conditions relating to their return Discipline and grievance procedures -Non-contractual -Right to suspend S1 ERA 1996
Confidential information Garden Leave Pay in lieu of notice Restrictive covenants Deductions from wages Training? Intellectual Property Data Protection Variation Contractual Benefits? Additional clauses
Employee Handbooks Purpose is to establish rules and procedures Provide useful guidance to staff and managers The extent or depth to which rules and procedures are documented vary significantly between employers Contractual or non-contractual? Factors to consider Risks
Employee Handbooks Make reference to Handbook in Contract of Employment BUT specify that it does not form part of employee’s terms and conditions. Employee Handbooks should be kept under frequent review to ensure they reflect the current legislation and best practice.
Policies &Procedures CQC Outcome 14 (Supporting Workers) – Suggested Policies Equal Opportunities & Dignity at Work Health and Safety Recruitment Training and Development Absence Policy Clinical Registrations Code of Conduct Significant Events
Policies &Procedures Other policies and procedures Disciplinary Grievance Capability / Performance Management Social Media Whistleblowing Maternity/Paternity/Adoption/Statutory Leave Substance Misuse Data Protection
Fair dismissals Two elements to avoid an unfair dismissal: Potentially fair reason for dismissal The Employer acts ‘reasonably’, including following a fair procedure
Fair reasons for dismissal 5 fair reasons (S98 Employment Rights Act 1996): Conduct Capability Redundancy Contravention of any enactment Some other Substantial Reason (‘SOSR’)
Adopting a fair procedure Suspension? Investigation Letter inviting employee to disciplinary hearing Right to be accompanied Disciplinary hearing Decision in writing Appeal Decision in writing
ACAS Code on Disciplinary and Grievance procedure Deal with issues promptly Act consistently Carry out necessary investigations to establish facts Inform employees of basis of problem Give employees an opportunity to put their case Allow employee to be accompanied at formal disciplinary hearings Allow employee to appeal against formal decisions
Capability S98(3) Employment Rights Act 1996: “Capability” in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality………”
Performance Management Performance management procedure? Disciplinary procedure? ACAS Code of Practice on Disciplinary & Grievance Procedures
Performance Management Job description Informal? Letter, meeting, right to be accompanied Objectives, improvement required, timescale & consequences of failure to improve Training, support, occupational health intervention, mentoring/supervision Appropriate level of warning? Demotion? Dismissal?
Conduct v Capability Can’t or Won’t? Was any instruction given reasonably? Is performance or conduct related to an employee’s health? Which procedure? What are you trying to achieve? Improvement = capability Behaviour = disciplinary