Recruitment in the New Normal

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective. This week we hear from our Employment law experts discussing recruitment in the new normal.

Given the cautious air of optimism for many businesses as lockdown continues to ease, thoughts are turning to growth and change, with a focus on recruitment.  Not only do some organisations want to take this opportunity to expand, others simply want to reinstate the status quo, having seen staff levels plummet over recent months as employees have left to work elsewhere during lockdown (to avoid being furloughed or long-term uncertainty) or have been made redundant.

Furthermore, with increasing numbers of employers and employees embracing remote working, the pool of potential candidates has widened, with candidates happy to look for jobs beyond the boundaries of their normal commute.  Therefore, for certain roles, candidates are becoming increasingly ‘location-agnostic’, giving greater choice to employers who are recruiting.

Whilst most employers have efficient recruitment processes in place, many are concerned about whether such procedures are still fit for purpose, for recruitment in the ‘new normal’, psot-lockdown landscape.  With that in mind, the employment law team at MLP have set out some guidance, to help employers avoid pitfalls in their hiring process over the coming months.

Recruiting after making staff redundant during lockdown

Employers can recruit to fill vacancies that have arisen as the result of making previous staff redundant. Provided that your business can point to commercial factors for the change in approach (such as improved conditions in the market or new business from clients) then previous redundancies are not a bar to hiring new staff.  Clearly, the shorter the period between making redundancies and recruiting to fill those same or similar posts, the more difficult it will be to justify the original redundancies, leaving your business open to claims of unfair dismissal.  A claim for unfair dismissal can only be brought 3 months (less a day) from the date of termination.

Be clear about your expectations when advertising

It’s sensible to clearly set out as much detail as possible about the role, early in the recruitment process – if remote working is a possibility, make it clear in the job advert.  This avoids awkward (and potentially discriminatory) conversations later in the process, on issues like working patterns and homeworking.  A blanket refusal to consider remote or homeworking may disproportionately affect female candidates, who are more likely to have childcare responsibilities, potentially making such a decision indirectly discriminatory.  It can therefore be useful to consider flexible working at the outset.

Be creative about incentives

For many, daily working life changed dramatically during lockdown and this has triggered an appetite for different ways of working going forward.  If remote or homeworking is something that may apply to the new role there are various innovative ways to financially reward employees and encourage them to become part of your business.  You could, for instance, consider stipends for employees who want to work in co-office spaces, instead of entirely from home, or offer contributions towards home office furniture or IT equipment.  This can encourage loyalty from the outset, as the new employee feels that you have invested in them.  If, however, the role requires the more traditional patterns of working, you can emphasise the benefits of a collegiate atmosphere and support within the workplace.  The key is to ensure that, whatever creative ways you choose to financially reward employees, the terms are reflected in the contract of employment, to avoid any dispute at a later stage.

Asking a candidate if they have had the Covid-19 vaccine

In general terms, questions about any aspect of a candidate’s health during an interview should be avoided until after the individual has been offered the job.  If, therefore, you consider that a vaccine is necessary for the relevant role, it can be a condition of any subsequent job offer.  If, however, you can’t demonstrate that asking staff to be vaccinated is a reasonable management instruction, you cannot insist that either existing or new staff provide you with this information.

Job offers conditional on having the vaccine

Making any offer of a position conditional on having the vaccine is also likely to fall foul of discrimination laws in the majority of situations.  Instead, support and encouragement by the employer – in the same way as for existing staff – is preferable.  There are circumstances, however, where an employer may be able to justify this approach, particularly if the role will involve working with the clinically vulnerable.  The Government is currently considering making the vaccination compulsory for care home staff but until a clear decision is reached, employers wanting to require employees to have the vaccine as a condition of employment should exercise caution.

Data privacy in recruitment

Employers should also be mindful of data privacy and security concerns if virtually interviewing and inducting candidates, but they must also consider their own risks.  For instance, how can a candidate prove they are who they say they are?  Organisations must verify a candidate’s identity to make sure they’re always dealing with the same person — not just during the recruitment process, but also when that individual attends training sessions and starts their first day of work.

Offering new starts less generous terms than those enjoyed by existing staff in the same role

Employers can offer whatever package they feel is sufficiently competitive, to attract high calibre candidates.  The key is ensuring that you comply with equal pay legislation requirements.

Hiring someone from outside of the UK

The way employers hire someone from outside the UK changed on 1 January 2021, when the Brexit transition period ended.  There is now a points-based immigration system. This means that:

• You’ll need a sponsor licence to hire most employees and workers from outside the UK.
• Anyone you recruit from outside the UK will need to meet certain requirements.
• You should plan ahead if you want to offer a job to someone from outside the UK as it may take longer than it used to.

You can also remind and encourage existing employees who are EU, EEA or Swiss citizens, to apply to the EU Settlement Scheme by 30 June 2021. Once they have applied, and are in receipt of settled or pre-settled status, they will have the right to continue to live and work in the UK.

If you have any questions about the above please contact the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.