How to navigate legal considerations in recruitment

Best practices to ensure fair recruitment

• Use inclusive and neutral job descriptions.
• Standardise structured interviews to prevent unconscious bias.
• Provide consistent, well-documented feedback to candidates.
• Train hiring managers on discrimination laws and equitable hiring practices.

The Power of Reasonable Adjustments

With a 30 per cent disability employment gap, employers must prioritise reasonable adjustments in their hiring processes to foster inclusivity and compliance with legal obligations. The whole intention behind reasonable adjustments is to remove any recruitment practice that would place someone at a disadvantage.

Common examples include:

• Extended time for interviews and assessments for candidates with dyslexia.
• Assistive technologies such as speech software, ergonomic furniture, and flexible interview formats for disabled applicants.
• Tailored recruitment processes for neurodiverse candidates, such as providing written questions ahead of the interview.

Employers are required to offer adjustments once they become aware of a candidate’s additional needs, even if the candidate does not explicitly request them. This approach promotes both compliance and a diverse, inclusive workforce.

Positive action vs. positive discrimination

Employers may take positive action under the Equality Act (Sections 158 and 159) to support underrepresented groups, but there is a fine line between action and discrimination. Section 158 allows proportionate action to level the playing field by reducing disadvantage, meeting different needs, or encouraging participation of underrepresented groups. Section 159 permits employers to favour a candidate from an underrepresented group in recruitment or promotion when two candidates are equally qualified, provided that the action is proportionate and does not constitute positive discrimination.

The relevant legal precedent is Turner Robson v Chief Constable of Thames Valley Police. A police force promoted an ethnic minority officer without advertising the role, leading to a successful discrimination claim from other officers who were deprived of the chance to apply.

How to implement positive action lawfully

• Targeted recruitment efforts, such as outreach to underrepresented groups.
• Diversity mentorship and training programs.
• Ensuring selection remains merit-based, with positive action only applied in tie-breaker situations.
• Regularly reviewing diversity initiatives to ensure they remain proportionate and lawful.

Mitigating equal pay claim risks

Employers must justify pay variations using objective factors, such as skill demand, location and experience, to mitigate the risk of equal pay claims.

Key strategies include

• Implementing a job evaluation scheme to assess role responsibilities objectively.
• Eliminating salary history enquiries, which can perpetuate gender and racial pay disparities.
• Carefully structuring recruitment premiums to avoid internal inequities.
• Ensuring that pay decisions are clearly documented and based on justifiable business needs.

The EHRC guidance (May 2021) outlines best practices for ensuring pay transparency and avoiding equal pay litigation.

AI in recruitment: legal and ethical considerations

AI-driven hiring tools are revolutionising recruitment but pose legal risks, especially regarding algorithmic bias.

Risks of AI in recruitment:

• Gender bias – Amazon scrapped an AI hiring tool that was found to favour male candidates.
• Age discrimination – AI may prioritise younger candidates due to digital proficiency.
• Privacy concerns – The Information Commissioner’s Office is actively investigating AI recruitment practices.

Employer Responsibilities

• Conduct regular AI audits to identify and mitigate biases.
• Ensure AI-driven decisions are explainable and transparent.
• Stay informed about emerging regulations on AI hiring tools.

Employment Law Reforms Impacting Recruitment

The key changes include:

• Employment Rights Bill: From Autumn 2026, employees may gain unfair dismissal protection from day one, increasing the need for structured probation processes.
• Flexible Working Requests: Employees have the right to request flexible working from the first day of employment.

Employers must adjust their hiring policies to remain compliant while attracting top talent in an evolving legal landscape.

Key Takeaways for Employers

1. Develop transparent pay structures to ensure fair compensation.
2. Train hiring managers to prevent discrimination and bias.
3. Provide reasonable adjustments for disabled candidates.
4. Implement positive action responsibly while avoiding unlawful discrimination.
5. Monitor equal pay compliance to avoid legal challenges.
6. Use AI cautiously, ensuring ethical and bias-free decision-making.
7. Stay ahead of legal reforms that impact hiring and retention.

Need Expert Advice?

Ensuring a legally compliant recruitment process is crucial for attracting and retaining top talent while avoiding costly litigation. For expert guidance, contact us at Paydata and legal representatives from Gowling WLG today.

Watch the full webinar here.