The New Recruitment Reality for Trusts

Implications for Probationary Periods

This is likely to have significant implications for probationary periods. If you use a standard six-month probation period for senior leaders or other management, then, at the end of that period an employee is deemed not to have met the relevant requirements of the role, they will have already gained unfair dismissal rights. You will need to build into your processes sufficient time to assess throughout the probationary period and complete the end-of-probation process, if necessary, for any dismissal to take effect before the employee gains unfair dismissal rights.

Schools and academies should bear in mind the statutory minimum one-week notice period for staff with less than two years’ service. Where no notice is given or a payment in lieu of notice is made, this must be added onto the date of dismissal which will extend the effective date of termination for the purposes of calculating qualifying service. This means that an employer cannot dismiss in the last week of the first six months of employment to try to circumvent the employee gaining unfair dismissal rights as, in those circumstances they still would.

It is important to ensure that regular reviews take place during the probationary period with a clear record held of the last date by which you may be able to dismiss before unfair dismissal rights are gained.

Avoiding Discrimination During the Interview Process

The Equality Act 2010 (EqA 2010) prohibits discrimination and harassment in relation to nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

An interview is likely to be the decisive stage of the selection process but also the stage when it is easiest to make judgments about a candidate. If assumptions about the capabilities or characteristics of individuals with a protected characteristic are made, this could lead to an unlawful discriminatory selection decision.

Training for Interview Panels

Schools and academies should ensure that staff undertaking interviews and selection are trained in any appropriate policies such as equality and recruitment and are familiar with the EHRC EqA 2010 Code of Practice which must be considered by Tribunals and courts where relevant. The right training will ensure that staff can recognise when they are making stereotypical assumptions about people, can apply a scoring method objectively, prepare questions based on the person specification and job description and the information provided in a candidate’s application form or CV, and avoid questions that are not relevant to the requirements of the job.

It is important to be clear to avoid questions at interview that could relate directly to protected characteristics, such as about childcare arrangements, living arrangements, or plans to get married or to have children. Where such information is volunteered, selectors should take particular care not to allow themselves to be influenced by that information. In Corus Hotels Plc v Woodward and another UKEAT/0536/05, the employer was ordered to pay £4,000 for injury to feelings to a prospective female employee based on questions at interview which implied that she would not be able to hold down the job because she had children, finding the interview had been conducted in a “crassly sexist manner”.

Training is also part of ensuring that you can rely on the “reasonable steps” defence if a job applicant argues that you are vicariously liable for the discriminatory conduct of those responsible for carrying out the exercise. Training should be given on an ongoing basis. Schools should review the training records of those involved in a recruitment exercise and, where necessary, provide refresher training before the exercise begins.

Safeguarding and DBS Checks

Schools and academies have a duty to ensure recruitment follows the processes of safer recruitment set out in KCSIE. This includes verifying identity and ensuring that all members of staff in regulated activity have received an enhanced DBS and barred list check before their appointment is confirmed or as soon as is practically possible following their appointment.

Pre-appointment checks should be recorded on the single central record, for schools this includes all staff, including teacher trainees, agency and supply staff. You should remove details of an individual from the SCR once they leave the school.

Fo those involved in recruiting, they must have had appropriate safer recruitment training, the substance of which should as a minimum cover the content of part three of KCSIE. Any decision not to appoint because of a conviction should be clearly documented and in line with school policy. The explanation from the applicant should be taken into consideration.

Information about criminal convictions collected during the recruitment process should be deleted once it has been verified, with a record only of whether the result of the check was satisfactory or unsatisfactory. DBS certificates should not usually be kept for longer than six months. In exceptional circumstances the information can be kept on file where it is relevant to an ongoing employment relationship.

Creating a Paper Trail

Schools and academies should ensure that they document the recruitment process so that there is a paper trail in the event of any complaint, data subject access request or litigation. It should be remembered that these documents, which should reflect the decision-making process in relation to the applicant, will be disclosed in any tribunal proceedings and consequently they should be written clearly and objectively.

Your records should assist you to justify each decision and the process by which it was reached. To show that decisions were based on objective evidence of the candidate’s ability to do the job satisfactorily and meet the relevant job and person specifications, and not on assumptions or prejudices about the capabilities of certain groups of people sharing protected characteristics.

During interviews, managers may scribble down handwritten notes or observations on interview papers, often giving little thought to what they are writing. These annotated papers will be subject to disclosure in the event of litigation, and as a result, managers should generally be discouraged from informal annotation of interview papers.

Data Protection Considerations

Schools must not keep information for longer than it needs to. Data protection law does not specify timescales for keeping recruitment records so you should carefully consider how long you need to keep this information, usually periods will be set out in a Retention Policy.

Retaining recruitment records may be necessary in case a school needs to defend itself against claims of discrimination or other legal actions arising from recruitment. While statutory limitation periods in place for bringing claims vary, the possibility that a person may bring a legal claim does not mean that recruitment records must be kept indefinitely. In general, a schools should not keep information beyond the statutory period in which a claim can potentially be brought, usually no longer than six years following termination.

Once a recruitment process has been concluded and an appointment has been made, it is unlikely that an employer will need to keep all of information it has acquired for the purposes of recruitment and selection. An employer may need to keep some details about the successful candidate and must carefully select what information is needed for the employment relationship. Information that is no longer relevant once the candidate becomes an employee must be securely destroyed in accordance with the employer’s retention and disposal policy. However, if records about any of the candidates are destroyed too quickly, it may be more difficult for the employer to prove that its end-to-end process is transparent, fair and accountable.