Tuesday 20 February 2018

Employment law: How to avoid expensive legal claims when recruiting staff

Successful claim by a potential recruit can result in awards of over €12,000

Alan O'Driscoll

GETTING employment law wrong during the recruitment process can be an expensive game for any business.

For example, a successful claim under the legislation by a potential recruit can result in awards of up to €12,697.

But there are ways to avoid the hassle and cost.

The Employment Equality Acts 1998 to 2011 outlaws discrimination in recruitment and selection of potential employees and not just during employment.

Employers must not deny access to employment on the basis of age, race, nationality, civil status, family status, sexual orientation, gender, disability, religious belief and membership of the Traveller Community.

A successful claim under the legislation by a non-employee can result in awards up to €12,697. 

And there have been a number of such cases. 

For example, an employee was awarded €10,000 by the Equality Tribunal in compensation for being discriminated on the grounds of disability.

Use these tips to avoid the pitfalls:

* Ensure the job description and requirements are carefully drafted in any advertisement.  They must not be discriminatory or make explicit or implicit reference to the age, gender or any other characteristics of the potential employee.

*If using an application form, a copy should be provided to all candidates. The form should only contain questions relating to the requirements of the position. Questions on marital status, number of children, date of birth, place of birth, medical history or any of the nine grounds listed in the legislation should not be included.

* During interviews, candidates should all be asked the same core questions, to ensure a consistent and fair approach.

* The selection decision and any supporting evidence should be documented, including notes from the interviews. This should include the reasons why the successful candidate was chosen.

* All documentation should be kept for a minimum of 12 months as a claim in certain circumstances can be brought up to 12 months after the date of the alleged discriminatory act.

* Under the Data Protection Acts 1988-2003 an unsuccessful candidate can obtain notes and data in relation to them and the recruitment process. These notes may assist in formulating a claim and therefore an employer should be careful when taking notes.

Unsuccessful candidates should be advised they were not selected as soon as possible.

* In general, there is no restriction on employers viewing personal information publicly available online in respect of candidates. This information if relating to one of the protected categories under the equality legislation cannot be used as a basis to refuse to employ that candidate. The Data Protection Commissioner has advised that employers should notify candidates that they shall be screened at the recruitment stage, which may involve online searches of the applicant.

* In relation to pre-employment medical exams these should be limited with reference to the exact job description and should not stray into areas which are irrelevant for performing the job description.

Alan O’Driscoll, partner of Flynn O’Driscoll a business Law firm with offices in Dublin and Galway (www.fod.ie) sets out below his key tips,  which if stuck to, will save money for businesses in the employment area.

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