1. Legal Issues and Liability in the Recruitment Cycle Oliver Brettle, Partner, White & Case LLP, London obrettle@whitecase.com AESC Researchers Summit 23 September 2009

2. WHITE & CASE LLP 23 September 20092 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Programme  Stages of recruitment cycle  General legal issues and areas of potential liability  Data Protection  Discrimination  How to protect yourself against liability

3. WHITE & CASE LLP 23 September 20093 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Agency role  What are the terms of the contract?  Who makes selection decisions throughout the recruitment cycle?  Does the agency act merely as a “post box”?  Data protection issues  Less scope for discrimination issues OR  Does the agency have selection instructions on how to eliminate candidates?  Data protection issues AND  Wide scope for discrimination issues

4. WHITE & CASE LLP 23 September 20094 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Identifying suitable candidates  Adverts  Agency must identify itself  Framing the advert – beware of indirect discrimination:  post qualification experience  qualifications  ability to work long hours/travel  medium used  Is the candidate aware of the purpose for which information is to be used?  Inform candidate as soon as possible of identity of client OR  Only send anonymised information to client

5. WHITE & CASE LLP 23 September 20095 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Identifying suitable candidates  Obtaining new information  What you can and cannot ask a candidate?  Avoid questions on race, ethnic origin, nationality, religious beliefs, sex, sexual orientation, disability, age, personal circumstances, family, dependants  Beware of indirect as well as direct questions  Try to ask similar questions to all candidates  candidates may have a right to request access to their notes  Information gathering  Remember - it is a criminal offence if you mislead a person/ organisation into giving you information about another individual

6. WHITE & CASE LLP 23 September 20096 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Identifying suitable candidates  Using information agency already possesses  DPA principles:  Do not process for any unspecified purpose  Adequate  Accurate  Kept up-to-date

7. WHITE & CASE LLP 23 September 20097 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Verification  Explain to applicants as soon as possible  What information will be verified  How information will be verified  Any external sources used e.g. Kroll

8. WHITE & CASE LLP 23 September 20098 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Verification  General checks relevant to all candidates  References  Offer conditional upon receipt of reference  Academic qualifications  In light of the nature of the role:  Is a criminal record check appropriate?  Is a credit check appropriate?  Is a medical examination appropriate?  Permission to work in the UK  Osborne Clarke Services v Purohit – to avoid discrimination claims, recruit on merit and address this at the final stages of recruitment process  Checks for FSA roles, solicitors, accountants

9. WHITE & CASE LLP 23 September 20099 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Verification  If verification reveals inconsistencies  Inform candidate  Allow candidate to provide an explanation  Ensure any explanation is incorporated into recruitment process

10. WHITE & CASE LLP 23 September 200910 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Facebook  Modern methods of employment vetting  candidate: personal brand  Risky recruitment tool?  Legal Issues  Discrimination – personal details  Age  Sexual orientation  Religion  Race  Data protection: Employment Practices Code  Reliability – do not place reliance on unreliable sources, allow applicant to make representations  Equivalent of pre-employment gathering – vetting only when significant risks involved

11. WHITE & CASE LLP 23 September 200911 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Shortlisting  Be consistent  Selection criteria – objective, more than one person  Written or psychometric tests – data storage  Paper trail – record of decision-making process

12. WHITE & CASE LLP 23 September 200912 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Interviews  Interview notes  Candidates may have a legal right to request access to notes  Keep notes of all interviews  Clear and objective reasons for selection/ elimination  Focus on skills  Avoid subject references e.g. “fit in”  Interview panels  Mixed race, sex and age panels if appropriate  Diversity and equal opportunities training  Questioning  Avoid questions on race, ethnic origin, nationality, religious beliefs, sex, sexual orientation, disability, age, personal circumstances, family, dependants  Beware of indirect as well as direct questions  Try to ask similar questions to all candidates

13. WHITE & CASE LLP 23 September 200913 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Transfer of information to client  Aim – data is no less protected once transferred  Can you transfer?  DPA principle:  General rule - no transfer outside EEA  Exemptions:  Consent  Non-sensitive information – consent  Sensitive information – explicit freely given consent  Exceptions:  EC declared adequate protections  USA “safe harbour” companies  Instructions/ conditions to client  How to transfer?  Security and technical measures

14. WHITE & CASE LLP 23 September 200914 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Retention of records  Complex matrix of rules!  General comments:  Records must be kept secure  Locked room/password protected/access given sparingly  Establish and adhere to standard retention times for categories of information  Business need and risk analysis  Computerised system to flag times  Anonymous information where practicable

15. WHITE & CASE LLP 23 September 200915 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Retention of records  What to destroy  Destroy all criminal records  Destroy information obtained by any screening as soon as possible and always within 6 months  Record of result can be retained  How to destroy  Securely and effectively  Hard copies are shredded  “Delete” key – not sufficient – check removed completely

16. WHITE & CASE LLP 23 September 200916 LEGAL ISSUES AND LIABILITIES IN THE RECRUITMENT CYCLE Worldwide. For Our Clients. White & Case, a New York State registered limited liability partnership, is engaged in the practice of law directly and through entities compliant with regulations regarding the practice of law in the countries and jurisdictions in which we have offices. www.whitecase.com 3000215