Checklist: Employment law considerations during a recruitment process (UK)

Introduction

This checklist provides in-house counsel, private practice lawyers and human resource professionals working in England, Wales and Scotland (GB) with guidance on the employment law issues to take into account when recruiting employees and workers. This checklist does not apply to Northern Ireland, where employment law is devolved to the Northern Ireland assembly.

This checklist addresses the following steps:

1. Consider the employment status of the individual being recruited
2. Ensure recruitment practices are not discriminatory
3. Carry out lawful pre-employment checks
4. Ensure compliance with data protection laws
5. Make arrangement for commencement of employment

This guide can be read in conjunction with Checklists: Identifying, reviewing and updating the terms of an employment contract and Determining the difference between an employee, a worker and an independent contractor.

Employers should be aware that the Employment Rights Bill 2024, introduced on 10 October 2024, aims to significantly enhance worker protections in the UK. Key provisions include granting day-one rights for unfair dismissal, paternity, parental, and bereavement leave, changes to sick pay and flexible working rights, protections against zero-hours contracts and restrictions on the use of ‘fire and rehire’ practices. New legislation will be introduced throughout 2025 and 2026. Further information can be found at UK Parliament: Employment rights bill and Employment Rights Bill: factsheets.

Step 1 – Consider the employment status of the individual being recruited

Step 2 – Ensure recruitment practices are not discriminatory

Step 3 – Carry out lawful pre-employment checks

Step 4 – Ensure compliance with data protection laws

Step 5 – Make arrangements for commencement of employment

Explanatory notes

The employment law considerations when recruiting employees and workers (referred to collectively as workers) are not contained in any one piece of legislation. Employers must be mindful of the requirements of a number of areas of law when carrying out recruitment processes, including:

• anti-discrimination laws under the Equality Act 2010 (EqA 2010);
• legal requirements for employers to establish that an individual has the right to work in the UK, under the Immigration, Asylum and Nationality Act 2006 (IANA 2006) and associated legislation;
• legal requirements for employers to carry out background checks in accordance with the Safeguarding Vulnerable Groups Act 2006 and associated legislation;
• employer obligations in relation to workers’ personal data, under the General Data Protection Regulation (GDPR); and
• employer obligations in relation to issuing written terms of employment to workers, under section 1 of the Employment Rights Act 1996 (ERA 1996).

Step 1 – Consider the employment status of the individual being recruited

When an organisation considers recruiting or engaging an individual to carry out work for or on behalf of it, consider the employment status of the individual once recruited. Employment status will dictate the organisation’s approach and legal obligations in a number of key areas including:

• the advertisement and recruitment process;
• the background checks required during recruitment;
• the contractual documentation that the organisation must issue to the individual;
• the obligations of the organisation in relation to matters such as payroll, taxation and benefits; and
• the individual’s statutory employment rights once employed or engaged.

1.1 Understand the different types of employment status

It is possible for an individual to be an employee, a worker or a self-employed, independent contractor. Employers should note that in GB, a person may be an employee for employment law purposes but have a different status for tax purposes. Employers must work out each worker’s status in both employment law and tax law. This guide is focused on employment status for employment law purposes rather than tax law.

1.1.1 Employee

Determining whether an individual falls within the statutory definition of an employee is a complex issue that has been the subject of extensive litigation. Each case must be decided on its own specific facts, using the precedents established by case law. Broadly, an individual is more likely to be an employee if:

• they are expected to be regularly available for work (unless on leave) and can expect work to be consistently available (known as ‘mutuality of obligations’);
• they are required to carry out the work themselves (known as ‘personal service’); and
• their employer, or an employer representative such as a manager or supervisor, is in charge of their workload and how, when and where the work is done (known as ‘control’).

1.1.2 Worker

All employees are also workers; however, some individuals will be defined only as a worker, and not an employee, if their working arrangement is more casual than that of an employee and the person for whom the worker is working is not a client or customer of the worker. An individual is likely to be classed as a worker if they are required to carry out the work themselves, but the work is less consistent, not guaranteed and the individual does not have an obligation to be available for work on a regular basis. Workers have more limited employment rights than employees.

1.1.3 Independent contractor

An individual who provides their services to an organization but is not an employee or a worker is an independent contractor. Independent contractors are self-employed and have very limited statutory employment rights or protections.

1.2 Carry out an assessment of employment status based on relevant factors

At the outset of any recruitment process organisations should carefully consider the type of relationship they intend to enter into with the individual they are seeking to recruit, based on the needs of the organisation and the role. Employment status will be determined by law and fact, rather than automatically following the intention of the parties, ie, even if a written agreement states that an individual is an independent contractor, the individual could be legally classed as an employee or a worker.

For further information about employment status and how to carry out an assessment of employment status for a particular role, see Checklist: Determining the difference between an employee, a worker and an independent contractor.

The remainder of this checklist assumes that the individual is being recruited as an employee or a worker, and not as an independent contractor.

Step 2 – Ensure recruitment practices are not discriminatory

The EqA 2010 contains the majority of GB’s anti-discrimination laws. For an overview of the different protected characteristics and types of discrimination under the EqA 2010, see How-to guide: Overview of workplace discrimination and harassment law.

The EqA 2010 applies to employees and also to job applicants (section 39), meaning that employers need to keep in mind the requirements of the EqA 2010 during any recruitment process.

2.1 Consider job advertisement wording

Employers should take care to avoid any discriminatory language in job advertisements. An obvious example of discriminatory language is if an employer specifies that a job applicant must be of a specific sex or race in order to apply (see 2.1.1 for potential exceptions). However, employers should note that there are less obvious ways of indirectly discriminating against job applicants, such as the following examples provided by Acas.

• ‘Recent graduate’ or ‘highly experienced’ – using these descriptions can discriminate against age and employers must be able to prove they have a good reason for any job requirement in their advert.
• ‘Barmaid’ or ‘handyman’ – these include gender-specific words that can discriminate against people’s sex and gender reassignment. Employers should make clear that people of any gender can apply, and use gender-neutral language such as ‘bar staff’.
• Specifying a nationality rather than a language requirement for the job – for example ‘German sales rep’ could discriminate against race, so ‘German-speaking sales rep’ would be more appropriate.
• Clothing requirements – for example, wearing a hairnet in a kitchen could discriminate against someone who for religious reasons covers their head in other ways. The employer could agree for the employee to use their usual hair covering.

2.1.1 Genuine Occupational Requirement

The EqA 2010 includes a potential exception to certain discrimination claims, which is known as a Genuine Occupational Requirement (GOR). A GOR allows an employer to lawfully discriminate in favour of a particular protected characteristic if, due to the nature of the work, being of a particular protected characteristic is an occupational requirement.

Commonly cited examples of GORs are where candidates for positions such as security officers are required to be of a certain sex to undertake roles that involve carrying out personal searches of individuals of the same sex. However, even in such situations, employers should proceed with caution when intending to rely on a GOR, as case law has established a restrictive interpretation.

2.1.2 Positive action

Positive action allows employers to encourage people from groups that are underrepresented in the employer’s workforce to apply for and fill vacant roles. Positive action is voluntary and only permitted to the extent that the group is underrepresented or disadvantaged and only allowed:

• at the application stage to encourage applicants; and
• in a tie-break situation where an employer is deciding who to recruit or progress out of two candidates who are as qualified as each other.

2.2 Avoid questions about health or disability other than in limited circumstances

Employers must not ask candidates questions about their health or any disability until the individual has been offered a role (including an offer on a conditional basis) (section 60 EqA 2010 ) other than in very limited circumstances, including in the following situations:

• in order to establish whether an applicant requires reasonable adjustments during the recruitment process employers commonly include a general invitation for candidates to identify reasonable adjustments in job adverts and application forms;
• for monitoring purposes to check the diversity of applicants, in which case the information should be separated from the application and not used in any decision-making process;
• when having a disability is a GOR (eg, a disability charity that wants to recruit a worker who has experience of the disability); and
• when a person’s ability relates to an intrinsic part of the job –for example a candidate interviewing for a roofing job could be asked about their ability to work at heights, but such questions should take into account whether the disabled person could do the job with reasonable adjustments in place.

2.3 Ensure decision-making during recruitment is not discriminatory

Employers should be mindful of the different types of discrimination and protected characteristics and ensure that decisions made at each stage of any recruitment process are not discriminatory. Examples of potentially discriminatory decisions during recruitment include:

• deciding not to offer a role to a candidate because they are pregnant or on maternity leave;
• deciding to favour applications from candidates of a particular sex or race despite there being no GOR or basis for positive action;
• declining applications from any candidates who express an interest in flexible working; and
• declining an application from an individual who cannot carry out certain tasks due to a disability, if the employer has failed to consider whether the individual could undertake the role if reasonable adjustments were made.

2.3.1 Objective justification

There is a statutory defence available for certain types of discrimination claims (eg, indirect discrimination and discrimination arising from disability) if the employer can establish that it invoked a proportionate means of achieving a legitimate aim. Objective justification is a different principle to a GOR, which allows employers to specify a particular protected characteristic in a job advert (eg, male instead of female).

2.4 Ensure decision-making is objective and recorded

Employers should ensure that the basis of their decision-making during a recruitment process is objective and, subject to the requirements of data protection law (see step 4 below), is recorded in writing (eg, through selection matrixes and scoring). This will help employers to defend any allegations of discrimination from unsuccessful candidates. Given the requirements of data protection law and the right of access of candidates to their data, deciding what information to record and retain is a balancing act for employers.

2.5 Take proactive steps to prevent any form of harassment during recruitment processes

Employers should adopt proactive measures to ensure a respectful and harassment-free environment during the recruitment process. This includes implementing policies, training staff involved in hiring, and taking all necessary steps to prevent harassment based on any protected characteristic under the EqA 2010. Employers may consider monitoring recruitment practices to identify potential risks, ensuring that all applicants are treated fairly and respectfully throughout the hiring process. These requirements align with the Worker Protection (Amendment of Equality Act 2010) Act 2023, which took effect on 26 October 2024, and mandates that employers actively prevent harassment in recruitment.   

Step 3 – Carry out lawful pre-employment checks

There are a number of checks employers should consider before employing an individual.

3.1 Right to work checks

All employers in GB have a responsibility to prevent illegal working by carrying out right to work checks before an individual is employed. The relevant legislation on illegal working can be found in sections 15 to 25 of the IANA 2006, section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016.  

Employers must do one of the following before the employee commences employment:

• a manual right to work check;
• a right to work check using identity document validation technology via the services of an identity service provider; or
• a Home Office online right to work check.

Detailed guidance on how to carry out right to work checks is provided by the government in its Employer’s guide to right to work checks.

3.1.1 Consequences of illegal working for employers

Employers who are found to be employing illegal workers can be liable for civil penalties of up to £60,000 per illegal worker if the employer has failed to carry out proper right to work checks in breach of section 15 of the IANA 2006. Civil penalties are calculated according to a sliding scale which takes into account an employer’s compliance record and mitigating factors.

Employers can be subject to criminal prosecution if the employer knew, or had ‘reasonable cause to believe’ that the worker did not have the right to work in the UK. Criminal prosecution can lead to unlimited fines, jail sentences and the disqualification of company directors or company officers.

3.1.2 Statutory excuse for right to work checks

A statutory excuse is a defence for employers against a civil penalty. If an employee is found to be working illegally, employers can establish a statutory excuse against a civil penalty if they carried out proper right to work checks before the individual commenced employment.

3.2 DBS checks

The Disclosure and Barring Service (DBS) checks allow employers to gain information about an individual’s criminal history.

DBS checks are carried out by the DBS in England and Wales, and by Disclosure Scotland in Scotland. There are different levels of DBS checks:

• a basic check – shows unspent convictions and conditional cautions;
• a standard check – shows spent and unspent convictions and cautions;
• an enhanced check – shows the same as a standard check plus any information held by local police that’s considered relevant to the role; and
• an enhanced check with a check of the barred lists – shows the same as an enhanced check, plus whether the applicant is on the adults’ barred list, children’s barred list or both.

There are no eligibility requirements for a basic DBS check, meaning that any employer can request a basic check on any applicant.

Eligibility for standard, enhanced, and enhanced with barred lists DBS checks is prescribed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. Employers should only request a DBS check on an individual when they are legally permitted to do so. Eligibility for DBS checks can be established using the government’s eligibility tool.

3.3 Online and social media checks

Employers are increasingly carrying out screening of candidates’ online and social media presence as part of pre-employment screening. Whilst such checks are not unlawful, employers should take into account the following points.

• Information gained through online checks should not be used in any way that might be discriminatory, as set out in step 2 above.
• All individuals have a right to privacy under article 8 of the Human Rights Act 1998. Checks of professional platforms such as LinkedIn are unlikely to breach any right to privacy; however, employers should proceed with caution when checking more personal social media sites such as Facebook. Employers should balance their need for background information on the candidate with the individual’s right to privacy. Relevant factors are likely to include the extent to which the candidate’s profile is publicly available, and whether the individual uses their social media platform for work or other promotional purposes, or purely for social and personal purposes.
• The employer should consider the requirements of data protection legislation.
• The potential for a victimisation claim if the decision is taken not to offer the candidate an interview or job and that decision is influenced by the fact that during a pre-employment check the employer discovered that the candidate had previously issued a claim under the EqA 2010.

3.4 References

It is common practice for employers to request references from candidates’ previous employers as part of pre-employment checks. There is no legal obligation to provide a reference (other than in specific financial services roles); however, failure to do so could expose employers to allegations of discrimination and victimisation from former employees, in particular when such allegations were raised by the departing employee during the course of their employment or on termination of employment, or when an employer that routinely provides references fails to do so for a specific former employee.

Many employers provide standard references only, often limited to confirmation that the candidate worked for them, employment dates and job title upon leaving.

3.5 Medical checks

As stated at 2.2 above, employers are prohibited by section 60 EqA 2010 from asking candidates questions about disability before they have been offered a role. For roles where health is a relevant factor, employers usually make an offer of employment that is conditional upon satisfactory medical checks. When taking this approach employers should keep in mind the principles of discrimination law and data protection law and note the following practical points.

• It is possible to lawfully withdraw a job offer due to a failed medical check; however, this should be a last resort and only considered after all potential reasonable adjustments have been explored.
• Medical checks should only be carried out when necessary. Gathering unnecessary health information about a candidate is likely to breach data protection laws, and unreasonably withdrawing a job offer from a disabled candidate is likely to breach the EqA 2010.

Step 4 – Ensure compliance with data protection laws

Recruitment inevitably involves the processing of candidates’ personal data. Employers must therefore be aware of the requirements of the UK’s data protection laws, which are found in the GDPR and the Data Protection Act 2018.

As well as personal data generally, during recruitment employers may also process:

• special category data under article 9, GDPR – through pre-employment medical checks, diversity monitoring, or in order to make reasonable adjustments for a disabled person; and
• criminal data.

Detailed information about how to comply with data protection laws can be found in How-to guides: How to ensure compliance with the GDPR and How to establish a valid lawful basis for processing personal data under the GDPR.

4.1 Consider relevant data protection issues

In the context of recruitment, employers should consider the following data protection issues in particular.

• Consider data quality and quantity – employers should only ask questions and collect information necessary to recruit for the role.
• Inform applicants – applicants must be informed about their rights at the outset of the recruitment process and the purpose for which their information is being processed. See, for example, the government’s recruitment privacy notice.
• Allow access to data – applicants must be allowed to access data held about them from all steps of the recruitment process.
• Consider retention periods – data protection law does not specify a maximum time period for retention of data, but information should be kept no longer than necessary.
• Information about criminal convictions should only be requested if justified by the type of role being recruited. Employers must not ask for ‘spent’ convictions

unless the job is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (in which case the employer will be able to carry out the applicable DBS check as outlined at 3.2).

Step 5 – Make arrangements for commencement of employment

Once an individual has been successfully recruited and all pre-employment checks completed, the employer will need to make arrangements for the worker to commence employment. This will involve preparing a written contract of employment and associated documents, as well as ensuring that the employer complies with its statutory obligations towards the employee.

5.1 Issue relevant documents and information

Employers should provide the following documents and information to new starters:

• an appropriate contract of employment;
• copies of any applicable staff handbook or other workplace policies and procedures; and
• information about inductions, training and any other new-starter materials such as office plans and organisation charts.

5.2 Ensure compliance with statutory employment law

There are a number of legal requirements employers must comply with when preparing contracts of employment and other documentation for employees:

• employer requirements to provide written particulars of employment, under section 1 of the ERA1996; and
• statutory employment rights of the employee, such as the right to be paid the national minimum wage (National Minimum Wage Act 1998) and the right to paid annual leave and specified rest breaks (Working Time Regulations 1998).

For further information, see Checklist: Identifying, reviewing and updating the terms of an employment contract. 

This Checklist was produced in partnership with Michael Salter of 42BR Barristers.

Additional resources

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How-to guides:

Overview of employment law
How to carry out a fair termination of employment
Overview of workplace discrimination and harassment law
How to avoid disability discrimination in the workplace
How to comply with the duty to make reasonable adjustments in the workplace
How to carry out a fair dismissal on the grounds of SOSR
Understanding the legal protections for whistleblowers
The framework for resolving employment disputes in England and Wales

Checklists:

Identifying, reviewing and updating the terms of an employment contract
Drafting a staff handbook
Determining the difference between an employee, a worker and an independent contractor
Carrying out a disciplinary process
Carrying out a capability process
Conducting a redundancy exercise
Managing multi-jurisdictional redundancies in Europe
Employment, immigration and tax considerations when dealing with cross-border working
Carrying out a TUPE transfer
An employer’s guide to fire and rehire

Quick views:

Protected characteristics under the Equality Act 2010
Key players in collective labour law – UK, Germany, Italy, France and the Netherlands
Collective redundancy consultation

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