Recruitment & Hiring – 6 things new employers need to know

There are various legal obligations that new employers should have in mind when hiring employees for the first time. Failure to comply with relevant employment laws can open employers up to both criminal and civil liability.

We have set out below the six key areas to consider.

1. Recruitment & structuring

Employers should consider how they are advertising job vacancies. It is important to use neutral wording for job advertisements to ensure these are non-discriminatory.

It is unlawful to ask pre-employment health questions, other than in limited circumstances, such as to make reasonable adjustments or to monitor diversity statistics.

The structure of the employment is relevant to ongoing liability. Employing through a company can help to limit liability and maintain consistency of employer as the business grows (instead of having some people engaged by an individual and some via a company later down the line)

2. Reasonable adjustments

Employers have a duty to take such steps as would be reasonable for them to have to take in order to help disabled staff avoid a substantial disadvantage (arising from physical premises, the need for an auxiliary aid or a provision, criterion or practice of the employer).

The duty arises from the recruitment process onwards (not just once employment begins) and applies when the employer has actual or imputed knowledge of the disability. It does not matter if the employee has labelled a condition to be a disability or if they are on medication that alleviates the disability.

Some people may use the UK ‘disability passport’ which details reasonable adjustments that can be made to aid the individual impacted by disability.

It is not for the employee to tell the employer what adjustments should be made, but having ongoing open conversations with the employee can assist employers in putting in place appropriate adjustments.

A failure to make reasonable adjustments is a form of unlawful discrimination.

3. Pre-Employment Checks

Employers are required to check an employee’s right to work in the UK. There is a streamlined process available online through the Home Office (here). Failure to do so can result in criminal sanction where employers engage staff with no right to work in the UK.

4. Documenting the Employment

Employees must be given a written employment contract no later than first day of employment. This must contain various provisions as required by statute, including details of normal working arrangements, place of work, salary, holiday and sick pay.

It is worth considering remuneration arrangements at the outset, including discretionary bonuses and stock options as part of a remuneration package.

Employees who work over 48 hours per week will need to contract out of the statutory limit to weekly working hours. It is important to bear in mind whether the employee is paid at least the national minimum wage / national living wage (which increases every year) where they are working longer hours.

If an employee’s role will include access to sensitive or confidential information (such as in sectors focused on intellectual property or research and development), it is worth considering putting in place a non-disclosure agreement.

5. Further Obligations

In addition to right to work checks and payment of the national minimum wage / national living wage, employers have further statutory obligations when employing staff. These obligations include:

• Registering as a new employer with HMRC;
• Setting up a payroll (usually through an external payroll provider) to pay employees via PAYE;
• Arranging an auto-enrolment compliant pension scheme (and enrolling any eligible joiners); and
• Putting in place employer’s liability insurance before staff begin working.

6. Policies & Training

All employers are required by law to have disciplinary and grievance policies in place. This ensures that employees have a clear reporting structure for issues and that the approach to disciplinary action is also clear. Employers should take further direction from the ACAS guidance on such procedures.

Employers should have a written data protection policy in place. The detail of the policy, and whether an employer is required to have a data protection officer, depends on the size of the employer.

All employers are required to have a health & safety policy. Where an employer has 5 or more staff, this policy must be in writing. Regular staff health & safety training is required, although the regularity and types of training will depend on the size of the employer and the work it does.

It is strongly advised for employers to have both equal opportunities and social media policies in place. Employers should arrange for regular equal opportunities training, with best practice being annual training. This helps to create a safer, friendlier workplace which will assist with employee retention and satisfaction.