Recruitment in the UK: Key legal issues and best practice

Application forms can be a fundamental part of the recruitment process, providing a structured and consistent way to gather relevant information from all candidates. When designing and using application forms, employers should:

• Ensure that the questions asked are relevant to the position and relate directly to the applicant’s ability to perform the job.
• Avoid requesting information that could lead to discrimination based on protected characteristics, such as age, gender, race, disability, religion or belief, or sexual orientation.
• Design forms which focus on skills, qualifications, experience, and competencies, rather than personal details unrelated to job performance (e.g. marital status or age).
• Communicate clearly how the information provided will be used, ensuring candidates are informed about data processing, retention, and their rights under the UK General Data Protection Regulations (UK GDPR).
• Retain completed application forms securely and only for as long as necessary, in keeping with data protection policies.
• Consider alternative methods of application for disabled applicants who may be disadvantaged by the prescribed form.
• Explain when pre-employment health checks are required.
• If you want to include an equality monitoring form, make sure the data can be separated from the application form to allow for anonymisation of the data.

Employers should review their application forms regularly.

Shortlisting is the process of identifying which applicants best meet the selection criteria for the role, as outlined in the job description and person specification. Some recruiters will not have any identified method for shortlisting which can create problems if a rejected candidate feels they have been treated unlawfully. Shortlisting is often done on an initial sift of application forms. Employers should:

• Apply objective and consistent criteria to assess all applicants avoiding personal characteristics unless an occupational requirement has been identified.
• Ensure that those involved in shortlisting are trained in recognising and avoiding unconscious bias and discrimination.
• Record the reasons for selecting or not selecting each applicant to provide transparency and a clear audit trail.
• Never shortlist or reject candidates based on any protected characteristic under the Equality Act 2010 (EqA 2010).
• Using an automated shortlisting system can have unintended consequences. Try to ensure there is an element of human decision making involved.

The interview stage allows employers to further assess candidates’ suitability for the role and to provide applicants with more information about the position and organisation. To ensure interviews are fair and effective:

• Structure interviews using predetermined questions based on the requirements of the role.
• Ensure all candidates are asked the same main questions and are assessed using the same criteria.
• Make reasonable adjustments for candidates with disabilities and offer flexibility when required.
• Document responses, assessments, and reasons for decisions, ensuring a transparent process. Candidates may ask for access to interview notes so be prepared.
• Avoid questions that relate to protected characteristics or could be perceived as discriminatory.
• If you use selection tests, make sure they measure the applicant’s actual or inherent ability against objective criteria and they are not used in isolation.

Most complaints about unfairness can be dealt with if there is a transparent approach to interviewing which reflects only the job requirements. Managers who are not trained on the legal obligations or how their decisions can be influenced by unconscious bias are at particular risk of claims against the employer and themselves personally.

Once a suitable candidate is selected, a formal offer of employment should be made, generally in writing. The offer should:

• Clearly state the terms and conditions of employment, including job title, start date, pay, benefits, and hours of work.
• Be marked as ‘conditional on receipt of satisfactory references’ and, where appropriate, ‘conditional on the successful completion of pre-employment checks’.
• Provide information on probationary periods and any other relevant policies.
• Include a deadline for acceptance after which the offer is deemed to be withdrawn.

Verbal offers can be made but should always be confirmed in writing as soon as possible. It is important to ensure that offers are not withdrawn without good reason, as this could result in legal claims.

Pre-employment checks are essential to confirm a candidate’s identity, eligibility to work, qualifications, and suitability for the position. Key checks may include:

• Right to work in the UK verification, as required by law.
• References from previous employers or academic institutions.
• Verification of professional qualifications or registrations, where required.
• Disclosure and Barring Service (DBS) checks, if applicable to the role (such as positions involving vulnerable adults or children).
• Health assessments, if necessary to ensure the candidate can safely perform the role, provided these are compliant with equality legislation.

Employers must obtain consent before carrying out checks, keep results confidential, and only retain necessary information for as long as required under the law. Any adverse findings should be discussed with the candidate, giving them an opportunity to respond.

Employers are generally not obliged to provide a reference for a former employee unless there is a written agreement to do so or where the position relates to a regulated sector, such as financial services. Any refusal to provide a reference must not be based on unlawful grounds, such as victimisation, whistleblowing, blacklisting, or union membership.

It is important to understand what reference details might be available for any candidate. Often simple statements of employment are provided containing job title, start date and end date. Former employers could be sued for negligent misstatement for providing a misleading or inaccurate reference and generally avoid saying too much.

It is unlawful for an employer to discriminate against a person at any stage of the recruitment process. This includes:

• In the arrangements the employer makes for deciding to whom to offer employment (e.g., the structure of the recruitment process, advertising, application forms, and selection methods);
• As to the terms on which the employer offers a person employment;
• By not offering a person employment at all.

The EqA 2010 establishes the legal foundation governing discrimination based on protected characteristics such as age, gender, race, disability, religion or belief, sexual orientation, and others.

The EHRC (Equality and Human Rights Commission) Employment Statutory Code of Practice, provides detailed guidance on how to prevent discrimination in employment and work-related activities, including recruitment. Whilst the Code is not legally binding, it can be used in evidence in legal proceedings brought under the EqA 2010 and must be taken into account by tribunals and courts when deciding claims. Employers should, therefore, make themselves familiar with the content of the Code and integrate its recommendations into recruitment policies and procedures.

Recruitment involves the collection and processing of personal data, making it essential for employers to comply with data protection legislation, chiefly the UK GDPR.

• Employers must ensure that any information collected from applicants—such as CVs, references, assessment results, application forms, and interview notes—is collected and processed lawfully, fairly, and transparently.
• Data should only be used for the purposes of recruitment and should be kept secure at all times to prevent unauthorised access or disclosure.
• Candidates must be informed about how their data will be used, how long it will be retained, and their rights regarding their data, including the right to access and request deletion or correction of their information.
• Unsuccessful applicants’ data should not be kept for longer than necessary and must be securely deleted or anonymised, in accordance with the organisation’s data retention policy.   Keeping details from unsuccessful applications to build a bank of data in case an opportunity arises in the future is something employers often do. In those circumstances it would be appropriate to seek consent to retain the data with a long stop date after which it is deleted.

Employers should regularly review their lawful basis for processing data and, if necessary, update their privacy notices and internal procedures to ensure compliance with UK GDPR at every stage of recruitment. Some employers prefer to have a separate data privacy statement for the recruitment process rather than a more general statement covering prospective and existing employees.

Our data protection expertise spans Employment, Corporate and Commercial, and Dispute Resolution teams. We’re here to help data controllers and processors protect personal data. But we can also help manage the consequences when things go wrong.

If the role involves working with vulnerable people, children, or the elderly, employers must carry out background checks on the candidates to ensure they are suitable for the role. The Safeguarding Vulnerable Groups Act 2006 (as amended by the Protection of Freedoms Act 2012) established the Disclosure and Barring Service and created a framework for barring individuals unsuitable to work with children and vulnerable adults. Several other statutes require background checks for individuals in different employment settings such as health and social care and education.

Yes, but there are more rules to follow.

• Contractual capacity of minors: Special attention must be paid to the contractual capacity of those under 18, as there are legal limitations governing the ability of minors to enter into binding employment agreements.
• Statutory restrictions and legislation: The main legal framework is the Children and Young Persons Act 1933 (as amended), which incorporates protections under the EC Directive on the Protection of Young People at Work. This legislation sets out who qualifies as a “child” (someone not over compulsory school age), and establishes strict limits on the employment of children, especially those under 14. Local authority byelaws may, however, permit light work for children as young as 13 in certain circumstances.
• Compulsory school age: In England and Wales, a person ceases to be of compulsory school age on the last Friday in June in the school year during which they turn 16. Children under this age generally may not be employed, but exceptions may exist based on local regulations.
• Restrictions for young people: A “young person” is defined as someone over compulsory school age but under 18. The employment of young people is principally restricted by health and safety obligations and by working time regulations, which limit the types of work, working hours, and duration.
• Right to time off: Both children and young people have the right to time off for study and training, reflecting the importance of education alongside any employment.
• Written statement of employment: Any child or young person employed should be provided with a written statement of particulars of employment, or preferably, a full contract of employment detailing their rights and responsibilities.

If you want to check your approach to recruitment, please contact one of our specialist employment law solicitors.