Sarah Buxton sets out some of the legal pitfalls of the recruitment process in dentistry.
It’s no secret that the recruitment and retention of good staff members within dentistry is one of the main problems facing dental practice owners. There is very little training provided at dental school or within the profession on how to recruit effectively.
When a team member leaves a dental practice, or you are growing your team, it is a good idea to reassess your business and make a decision about what role you actually need. For example, if you have always engaged a self-employed hygienist and they leave, you should assess whether it may be better to employ a hygienist going forward. There are numerous pros and cons to the different types of employment status. The main difference between self-employed and employed is the difference in control. As an employer you have far more control than an engager of self-employed team members.
Preventing discrimination
Not many practice owners are aware that a claim can be made to the employment tribunal before an employee even commences employment because of how the recruitment process is conducted. This is usually when discrimination cases are made. The discrimination legislation protects team members from being treated differently because of a protected characteristic.
The nine protected characteristics are: sex, age, race, religion/belief, gender reassignment, sexual orientation, disability, marital status/civil partnership and pregnancy/maternity. It’s important to note that the amount of compensation that can be awarded in those situations is unlimited so eye-watering amounts of monies can be paid out. We advise all practice owners check if they have legal expenses insurance in place. Legal expenses insurance is an insurance product whereby if you receive a claim in the employment tribunal, your legal fees, out of court settlement and any judgment awarded would be covered.
There are some interesting case studies showing where people have been tripped up during the recruitment process.
One notable case is where an individual was providing a CV in two formats. One of them was in an anglicised name and the other was in an Asian name. He was sending the same CV to various employers, and nine times out of 10, the one with the anglicised name would be given the opportunity of an interview.
This meant he was able to go to the tribunal and say: ‘Look, the CVs are exactly the same. The only reason I wasn’t given an opportunity of an interview is because of my name and therefore the inference is because of my race’ and he would be awarded compensation for race discrimination.
So, it’s really important that practices do have recruitment policies in place and, although practices are desperate to recruit at the moment, we’ve still got to follow those policies and procedures to try to prevent these type of discrimination cases.
Interview notes
Knowing how to interview people is a skill in itself. If you’re trained in the recruitment process, then you know how to ask the right questions to make sure that you do get the ideal team member. You also know there are certain questions that you shouldn’t ask in respect of their health or their personal issues and so on. But ultimately those who are well trained in recruitment and have experience in it will make good notes.
You should keep them on file because if somebody makes a claim against you for discrimination – perhaps because they believe they didn’t get the job because of their race, age, disability or so on – with any luck you will have some notes that set out why they didn’t get the job. And hopefully, those notes will show they were unsuccessful because of skill, or attitude, or something along those lines.
We also advise you to keep your notes. Your GDPR policies will set out how long you keep them because, if you don’t recruit that person, you will only be able to keep them on file for a certain period. But my advice would be to keep them for at least three months because that’s the time limitation in which somebody has to make a claim in the employment tribunal. Please note that the limitation for these types of claims is also due to change from three months to six months, so an applicant will have a longer timeframe to bring a claim.
Top tip: It’s important that you don’t recruit the wrong person just to fill a gap. Having the wrong person with either the wrong attitude or skill ends up being more costly and stressful in the long run
Currently, the court system is blocked up so potential employers don’t always realise they’ve got a claim against them within that three-month period. With this in mind, I suggest keeping notes a little bit longer, maybe six to 12 months. This also means if another position arises, you can revisit your notes and if a person narrowly missed getting the job, and your GDPR policy allows you, you’d be able to go back to them. So, there are several advantages to keeping your interview notes.
If you are the person that’s interviewing, concentrate on what you are doing, the last thing you want to be thinking about is making notes and getting that down. It’s really good to have somebody independent making those notes. And I often say as well, it doesn’t necessarily have to be somebody within the team.
It could be nice to get somebody external to come in with you and give you a different view on that individual. I appreciate that as a small team quite often it’s difficult for two people to be out of surgery to interview for an hour. It might be good to get a colleague from elsewhere to assist you with that.
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