Ever felt like a job advert excluded you? Have you experienced some rogue interview questions? Do you think you were rejected unfairly? Applying for jobs can feel like employers have all the power - but it’s really important that you know your rights from the moment you see a role, all the way up to an offer or rejection. We’ve set out key rights at each stage of the recruitment process and what you can do if you think you’ve been mistreated.
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1. Job Adverts

When would an advert be unlawful?

Even before hiring someone, under the Equality Act 2010, employers have a duty not to unlawfully discriminate against applicants.  

This means that, as a general rule, job descriptions should encourage applicants from a diverse pool of applicants and not exclude, or discriminate against, people with certain ‘protected characteristics’ (e.g. age, sex, gender, race, disability, religion, sexuality, marital status, maternity). Discriminatory requirements in job ads can appear in various ways - for example: 
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• “We’re looking for applicants in the first few years of their career” -  this is likely to exclude older applicants
  

• “Seeking someone mobile and energetic” - this may discriminate against applicants with certain disabilities 
  
  

Can an employer request applications from certain groups of people?

Sometimes:

• An employer may be able to justify requesting applicants with certain characteristics if it is needed to be able to perform a job effectively. For example, women might be required for a job vacancy relating to physical security searches of other women at an airport.
  
  
• Employers can also encourage applications from specific groups if they’ve noticed that individuals with certain characteristics (often gender or race) are underrepresented in the workplace or suffer a particular disadvantage. In this situation, employers can take what’s known as ‘positive action’ to try to minimise the disadvantage. In the context of job adverts, this could be express wording to encourage applicants from particular groups.  
  

NOTE: Positive action is different from positive discrimination - which is unlawful in the UK. This means employers should not seek to hire people solely based on their protected characteristic (e.g. race or gender), as opposed to considering their experience or qualifications. 

2. The Application Stage

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What information can employers legally ask for?

In the application process, recruiting employers should only ask candidates for information that is relevant to the role. Except in very limited circumstances, employers should not seek to ask an applicant about their health or any disability before they have been offered a job - this could include questions around previous sickness absence and whether someone needed to shield as a result of the COVID pandemic. Limited exceptions to this rule include:

• Discussions around reasonable adjustments to help an applicant complete the application process e.g. extra time on assessments or materials in a more accessible format
  

• Where an employer wants to ensure disabled applicants can benefit from schemes aimed at improving employment rates among disabled people e.g. the disability confident scheme.
  

• Where a question relates to a person’s ability to carry out a job and such an ability is absolutely essential for the role e.g. an employer for a roofing company may ask about an applicant’s ability to climb ladders and work at height.
  

An employer should always make clear why they are asking sensitive questions and how they will be using that information. Any diversity monitoring forms should be separate from the main application form.

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Can an employer check my social media accounts before making an offer?

Employers must have a good reason to check an applicant’s social media and it should clearly relate to the recruitment process e.g. a marketing role which relies on social media use. 

Employers must also tell applicants that they will be doing this, ideally in a privacy notice, and giving them a chance to respond to any questions or statements about the content.

If social media is reviewed, employers must take care to apply this monitoring consistently to all candidates, or not at all, to avoid being discriminatory. 

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Must employers acknowledge my job application?

No - but it’s best practice to, and usually at each stage of a recruitment process they will, as a lack of response can have negative repercussions for an employer’s reputation.  

You are within your rights to ask for an outcome if you haven’t heard back. 

3. Assessments and interviews

What questions can I be asked in an interview?

Candidates should be interviewed fairly and consistently - this means that it is best practice for employers to ask all candidates similar questions and for responses to be assessed in the same way.

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As is the case on application forms, you should not be interviewed about any of your protected characteristics e.g. things like your gender, race, age, disability. This could include questions about your plans to have children in the future, whether you’re married or your sexual orientation. 

Can an employer request that I take part in a psychometric test or other assessment?

Employers are entitled to ask you to complete psychometric tests or assessment centres which can help an employer to gain insight into your skillset, strengths or weaknesses.

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Importantly, employers are obliged to make testing fair for all applicants - adjustments should be made to accommodate any disabilities that could affect an applicant’s ability to complete an assessment e.g providing extra time.  

4. Dealing with rejections

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Am I entitled to/ can I request feedback?

If you applied for a job but were unsuccessful, you can ask the employer to tell you why they did not hire you and request that they share any formal recruitment rules or policy with you, as well as any other feedback. However, the employer is not legally obliged to provide this information.

Where you have clearly been rejected on grounds of a protected characteristic or the company has applied their recruitment rules differently towards you, you may be able to challenge them either informally or formally in the employment tribunal (see below).

Can I see what data the employer has collected about me?

Under the Data Protection Act 2018, you are legally entitled to write to an employer and make a ‘subject access request’ under section 45 of the Act, requesting any information that the company holds about you. It is sensible to keep a copy of the letter or email, and proof of postage in the case of a letter. 

In the case of an employer being a public body, you can also make a Freedom of Information Act request which would enable you to find out things like how many people applied for a position and elements of the decision making process. 

What can I do if I feel the recruitment process was discriminatory?

If an employer has asked you questions about your protected characteristics during the process and then does not make them an offer, you may be able to make a claim for discrimination if you can prove that it was the reason for your rejection.

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For example,  if it can be shown that an applicant was rejected solely because they responded with information about their disability this would likely be proof of discrimination.

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If you believe you have been unfairly discriminated against, in the first instance you can complain to the employer. It is sensible to put this in writing, with a description of what happened and why you believe it to be unfair, as well as the result you hope to achieve - for example, compensation, a further chance to interview, or an apology.

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If they do not respond, you may wish to make a claim for discrimination in an employment tribunal, but you must do so within 3 months. 

5. If you’re offered the job!

When should I hand in my notice with my current employer?

To protect yourself, it is sensible to sign offer letters with a new employer before handing in your notice at your current place of work. This is particularly important for conditional job offers (e.g. if the job offer relies on you passing a background check). 

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My new employer wants me to start ASAP. Can I negotiate down my notice period with my old employer? 

You can try to negotiate your notice period with your existing employer (your notice should be set out in your employment contract).

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However where no alternative agreement is reached with your employer and you refuse to work your contractual notice period, you will be in breach of contract and your employer will not have to pay your full notice if you refuse to work.  

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Your employer may also be able to make a claim against you if they incur additional costs owing to your leaving. 

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When should I receive my employment contract from my new employer?

From 6 April 2020, workers and employees are entitled to receive the terms of their employment on or before their first day. 

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This statement of terms should include things like the worker/employee’s hours and days of work, entitlement to paid leave, benefits, probationary period, and any training provided by the employer.

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Can my new employer withdraw my offer of employment?

This depends on the nature of the offer, specifically whether it is conditional or unconditional:

• A conditional offer is subject to references and other checks. If a conditional offer is made, an employer may rescind an offer, for example where references prove unsatisfactory or you did not obtain a specified exam grade. 
  

• An unconditional offer, however, imposes no conditions on employment and a contract will be created as soon as the job offer is accepted. Therefore, the employer will likely have to terminate your contract following the usual rules of notice for employees. If they do not, they will be in breach of contract.
  

NOTE: if a job offer was rescinded and you have evidence that discrimination occurred when the offer was withdrawn, you could take the employer to an employment tribunal. 

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So, whilst job-hunting can be tough, remember that no matter how many applicants, or how prestigious an employer, you have the same rights to be treated fairly throughout the recruitment process. Good luck!

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With thanks to Hannah Graham for this post.