How to ensure your recruitment process is legally defensible

Ali Shalfrooshan explains why failing to consider the objectivity of how they hire can prove expensive for employers

From ridiculous interview questions to onerous assessments with little or no relevance to the job, there’s no shortage of stories where recruitment goes wrong. Here are three ways recruiters can leave themselves open to legal action:

Not performing a job analysis

Businesses are vulnerable to legal action if a candidate believes that the recruitment process hasn’t accurately assessed their ability to do the job. That’s why the process of gathering, examining and interpreting reliable information and data about the nature of the role is critical. Without it, recruiters won’t be able to build assessments that reflect the job. 

This leaves employers at risk of putting candidates through unjustified tests that might be easy to conduct or ‘feel’ like an ideal employee would do well at them, but are in fact irrelevant. Getting the right expertise involved at an early stage will save time, money and significant stress in the long term.

Failing to monitor diversity

If a company is not actively trying to ensure its recruitment process is inclusive, it runs the risk of justified – and high-profile – lawsuits. The Equality Act 2010 is extremely wide-ranging and covers discrimination in the recruitment process, as well as in the workplace. Not only does the Act require an employer to promote equality and consider whether they are discriminatory on any grounds, there’s also a strong business case for diversity.

Solutions such as multimedia situational judgement tests that require candidates to rate the effectiveness of a series of responses to realistic work-related scenarios are typically shown to be more fair than other assessments. However, it is still critical for employers to review their data and monitor the impact of these tests, so that they’re sure the tests they use are not adversely affecting any candidates. 

Running inconsistent interviews

The interview easily wins as the most likely part of the hiring process to result in a lawsuit. Asking inappropriate questions about a candidate’s family plans, health conditions or personal history can get employers in real trouble – and rightly so. 

Questions that focus on characteristics such as age, gender or race are rarely relevant. Interviews must be structured and consistent, with all candidates asked the same questions. Equally, all candidates should be required to meet the same criteria and complete every stage of the process, regardless of whether the employer believes they are right for the job.

There are tools available that help businesses to build professional, competency-based interviews. By giving hiring managers robust tools and content for their interviews, employers will reduce subjectivity and protect themselves from the risk of inappropriate questions, as well as giving interviewers what they need to find them the best talent.

What is legally defensible?

A recruitment process is legally defensible if it is valid and predicts job performance, with appropriate considerations made across all groups. Most businesses that make mistakes genuinely want to achieve this, but no legal claim has ever been defeated because the company ‘meant well’. 

Recruitment professionals have a responsibility to make sure the processes they develop and implement as inclusive as possible. By creating a truly fair process, employers’ recruitment will be more robust and legally defensible – and they’ll be assured of recruiting the right person for the role. 

Ali Shalfrooshan is head of international assessment R&D at PSI Talent Measurement