Legal

New legal risks for recruiters

7 Sep 2020 By Carla Feakins

Carla Feakins explains the potential legislative pitfalls brought about by coronavirus that hiring professionals should be aware of

While the recruitment industry is subject to general legal regulation, additional legislation applies in some sectors such as agriculture, food processing and the care sector. This may require recruiters to be licensed and subject to a rigorous compliance regime. 

Even outside regulated sectors, all recruiters (both temporary and permanent) are legally obliged to ensure that both hirers and work-seekers are aware of any requirements – whether imposed by law or any professional body – that must be met before work can start. 

In a time where new regulation is being introduced at a rapid rate in response to the challenges arising from the pandemic, recruiters need to keep up to date with the latest Covid-related changes and be prepared to move quickly when new rules come into effect. Also, when moving into new sectors, recruiters should do their research to ensure they are legally compliant. Significantly, the risks of getting it wrong include possible criminal penalties. 

Policies and procedures

Recruiters are more at risk of potential claims from both work-seekers and hirers than ever before. This is partly as a result of the challenging economic climate and partly as a result of increased awareness of recruitment regulation both among hirers and work-seekers. To reduce the risk of claims recruiters can:

  • review their terms of business and terms of engagement with an eye to Covid-19. Do the contracts still work in the ‘new normal’ or are amendments required?
  • refresh and update internal procedures to ensure these meet the minimum regulatory requirements; 
  • ensure all consultants are trained on compliance with recruitment regulation in addition to data protection and diversity; 
  • consider linking performance-related pay to compliance with procedures to drive up standards; and
  • update complaints policies to ensure any issues are picked up and dealt with quickly. Also, consider allocating a particular person or team to deal with complaints so they are treated consistently. 

All recruiters are legally required to keep records to demonstrate their compliance with the regulations applicable to the recruitment industry. These records can also be helpful to defend potential claims, if hirers or work-seekers seek to sue recruiters for breaching their obligations. 

Health and safety

Businesses are taking steps to ensure their workplaces are Covid secure, so that workers are protected during the pandemic. Measures are likely to include conducting risk assessments, implementing social distancing and enforcing enhanced hygiene regimes. 

Recruiters may need to adapt procedures to protect the health and safety of their own staff as well as that of their work-seekers; for example, when interviewing candidates, performing right to work checks and taking copies of relevant licences and certifications. 

Recruiters in the temporary and contractor space are legally required to request relevant information about health and safety from hirers, then provide it to potential workers in advance of each assignment. To mitigate the risk of potential claims, recruiters should proactively help hirers to gather the appropriate information and ensure workers review it before starting work. 

As the job market rapidly evolves, there is one particularly important legal obligation recruiters should bear in mind. They must always make proper enquiries to verify that a placement is not detrimental to the interests of either the hirer or those of the work-seeker. To meet this obligation recruiters must ask questions to understand what is in the best interests of both hirers and work-seekers. 

Carla Feakins is a senior associate in the employment team at Lewis Silkin

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