Fair recruitment: the legal bits employers miss
Two rules shape a UK hiring process more than any other - and one of them is broken by the health section on a standard application form.
Two legal rules shape a UK hiring process more than any other, and one of them is regularly broken by the application form itself. You must check right to work before someone starts, and keep the evidence for the employment plus two years (gov.uk). And under s.60 Equality Act 2010 you must not ask about health or disability before offering work, subject to narrow exceptions.
The health question rule
Section 60 prohibits asking about an applicant's health before you offer them work, or before you include them in a pool of people to be offered work. It exists because health questions at application stage let disability filter candidates out invisibly, before anyone has to justify a decision.
The exceptions are real but narrow. You may ask in order to:
- Work out whether you need to make reasonable adjustments to the assessment process itself - the interview, the test, the trial shift.
- Establish whether the applicant can carry out a function intrinsic to the job, taking account of any reasonable adjustments.
- Monitor diversity among applicants.
- Take positive action in relation to disabled people.
- Apply an occupational requirement relating to disability, where that is a proportionate means of achieving a legitimate aim.
- Vet for national security.
A function is intrinsic if the job cannot be done without it - not merely if it is usual, convenient or in the job description. "Can you lift 25kg?" is a fair question for a role where lifting is the job; it is not a fair question for an office role that occasionally receives deliveries. The safest structure is to ask nothing about health on the form, make the offer conditional, and handle adjustments and any genuine health requirement after the offer.
Note what s.60 does not do: it does not stop you asking whether someone needs adjustments to attend the interview, and it does not make a health-based decision lawful just because the question was allowed. Those remain disability discrimination questions in their own right.
Right to work checks
The check must happen before the person starts work. Done correctly it gives you a statutory excuse against a civil penalty for employing someone without permission to work; done late, or not at all, it gives you nothing.
| Check type | How it works | Who it suits |
|---|---|---|
| Online check | The applicant gives you a share code, which you use with their date of birth | Most non-UK and non-Irish nationals |
| Manual document check | You see the original documents with the person present, copy and date them | British and Irish citizens |
| Identity service provider | A certified provider verifies the document using identity document validation technology | British and Irish citizens, done remotely |
This catches out employers who have digitised the process around share codes and then find it does not work for the majority of their applicants. Those candidates need a manual check or a certified identity service provider. Build both routes, or the process quietly reverts to "we'll sort it on their first day" - which is the day after it needed doing.
Keep copies for the duration of the employment and two years after it ends, and record the date the check was made. A copy with no date is weak evidence that the check happened before the start date, which is the only thing the statutory excuse turns on.
Structure the assessment, then keep the notes
Nothing requires you to use a scorecard. What the law requires is that you do not discriminate, and what a tribunal looks for is evidence of how the decision was actually made. A structured process - the same questions, scored against criteria agreed before you met anyone - produces that evidence as a by-product, and reduces the drift towards hiring people who interview comfortably.
- Agree the criteria and their weighting before shortlisting.
- Ask every candidate the same core questions; follow-ups can differ.
- Score against the criteria, with a sentence of evidence per score. "Good culture fit" is not evidence; it is the thing evidence is supposed to replace.
- Keep the notes. Interview notes are disclosable, so write them as though the candidate will read them - because they may.
Records and retention
Right to work evidence has a fixed period: employment plus two years. For everything else there is no single statutory retention period, so you have to choose one and apply it. Most employers keep unsuccessful applicants' records for six to twelve months - long enough to cover the window for a discrimination claim and to answer a question about the decision - then delete. Whatever you choose, write it in your retention schedule and actually run the deletion; an indefinite pile of old applications is personal data you have no reason to hold.
The job description, interview scorecard and offer letter templates put this into practice.
Keep reading: All 66 HR guides · 30 free templates · 24 calculators
Hiring that leaves a trail worth having
CoDash keeps roles, candidates, interview scores and the offer in one place, then carries the accepted candidate straight into a person record with their documents and day-one checklist attached.