Getting recruitment right (and why it matters more than ever)

Hiring the wrong person can be a costly mistake, and upcoming unfair dismissal reforms will give employers an even greater incentive to get recruitment decisions right first time. From January 2027, employees will gain unfair dismissal protection after six months' service rather than two years.

For more information, see our articles on:

• unfair dismissal reforms under the Employment Rights Act 2025;
• the removal of the cap on compensation for unfair dismissal;
• probationary periods; and
• fixed-term contracts.

Employers will need to be confident that they are hiring the right person in the first place, carrying out more rigorous recruitment checks and assessments before making appointments. However, these checks bring risks of their own, so employers must avoid overstepping the mark.

In this article, we look at the key risks around recruitment and provide our recommendations on getting it right.

Social media checks: lessons from Ngole v Touchstone Leeds

The recent case of Ngole v Touchstone Leeds highlights some of the legal pitfalls that can arise when informal background checks on candidates are used.

• The claimant (a Christian) had previously made Facebook posts describing homosexuality and same-sex marriage as a sin. This led to his removal from a social work course and prompted him to bring litigation against the university. 
• After finding news reports of the litigation online, the respondent (a mental health charity) withdrew the claimant's job offer due to concerns about the potential impact of his views on its largely LGBTQI+ service users.
• The tribunal upheld Ngole's claim for direct discrimination in relation to the withdrawal of the job offer, but not in relation to the requirement for him to attend a second interview to confirm that his beliefs would not impact service users, or the decision not to reinstate the job offer. 
• The Employment Appeal Tribunal held that the tribunal had failed to analyse the employer's motives for these latter two acts. If they were motivated by concerns that its service users would be offended by the applicant's protected beliefs, this would be direct discrimination without justification. The case has been remitted to the first instance tribunal to consider this question.

Key risks when carrying out background checks

Discrimination

Online searches can reveal information about people’s private lives that may lead to unlawful judgments based on protected characteristics. The Equality Act 2010 applies to job applicants just as much as employees, so employers must ensure that hiring decisions are based on legitimate job-related criteria rather than information that could give rise to discrimination claims. Employers should ensure they can demonstrate why the successful applicant was chosen and other candidates were rejected, showing that the reasons are lawful and non-discriminatory.

Data protection

Social media screening can also give rise to data protection risks, including potential breaches of lawful processing requirements, special category data protections and transparency obligations. The ICO draft guidance on recruitment and selection sets out important procedural safeguards, including:

• ensuring employers have an appropriate lawful basis for processing candidate information and that it is carefully documented;
• only collecting candidate information that is relevant and necessary for the role;
• informing candidates how online checks will be carried out and allowing them to comment on information obtained before hiring decisions are made;
• separating functions so that staff who carry out social media checks do not also make recruitment decisions; and
• retaining candidate information only for as long as necessary.

Reputational risks

Heavy-handed or poorly managed recruitment processes can expose employers to reputational risk. In an era where candidate experiences are quickly shared online, missteps in the recruitment process can shape wider perceptions of an employer's brand, deterring future talent and undermining credibility in the market.

Ten key considerations for getting recruitment right

In light of the risks outlined above, including the forthcoming unfair dismissal changes, employers should consider the following:

1. Use clear and objective recruitment criteria: advertise vacancies openly and ensure job descriptions focus on the skills, qualifications and experience genuinely required for the role.
2. Assess candidates consistently and keep records: apply the same criteria to all applicants and document recruitment decisions so you can demonstrate why one candidate was selected over another.
3. Conduct appropriate pre‑employment checks: verify qualifications, employment history and references. For senior or high-risk roles, more extensive checks may be appropriate. In all cases, employers should ensure any screening process complies with discrimination and data protection requirements.

4. Use more than one assessor and a range of assessment methods where possible: this can help detect issues early and reduce bias.
5. Make reasonable adjustments for disabled candidates: ask candidates whether they need adjustments at any stage of the process and accommodate requests where reasonable.
6. Avoid potentially discriminatory questions: for example, questions about family plans, marital status or previous tribunal claims are unlikely to be lawful.
7. Handle flexible working requests carefully: while applicants do not have a statutory right to request flexible working before employment begins, employers should consider such requests carefully, particularly where discrimination risks may arise.

8. Train hiring managers: provide training on the forthcoming unfair dismissal changes, equality law, unconscious bias and risks around informal online searches.
9. Carry out right to work checks consistently: ensure all necessary checks are completed for successful applicants before employment begins, and avoid making assumptions about nationality or immigration status based on appearance, accent or ethnicity.
10. Focus on onboarding and probation management: clearly communicate performance expectations from the outset and address concerns promptly. The forthcoming unfair dismissal changes will make effective onboarding and probation management even more important. Read more on managing performance effectively during probationary periods here