3 Jan 2023  •  Blog, Practice Management  •  7min read By  • Zoe Close

Avoiding the legal pitfalls of the recruitment process

It’s no secret that the recruitment and retention of good staff members within dentistry is one of the main problems facing the industry right now. Many practices are involved in a recruitment process of some sort. However, not everyone is aware of the potential legal problems they could face if things aren’t done correctly.

Practice Plan Head of Sales, Zoe Close, talks to Employment and HR lawyer, Sarah Buxton, about how to run a recruitment process without the fear of litigation.

ZC:  It’s a really interesting topic and it’s one that’s been part of my life when I’ve been working in practice for the past 30 years. I think complaints and litigation is something that keeps us all awake at night and particularly for the last 15, or 20 years, I know it’s been paramount in the minds of most of the clients or practices that I’ve worked at. 

Something struck me when I read a recent survey that Savanta had carried out for us called The Future of Dentistry. One of the questions we asked was around litigation, and the results showed 49% of dentists stated that they would consider leaving the profession before retirement because the fear of litigation is too great. So that’s a huge proportion of a profession that’s struggling to recruit and maintain people. 

SB: Yes, and I do know that practice owners worry about what will happen if they end up in an employment tribunal. And what’s interesting is that a lot of people do not realise that before you even employ or engage a team member, so during the recruitment process, a claim can still be made against you as the practice owner. And that’s usually when we end up in the employment tribunal for discrimination cases and the amount of compensation that can be awarded in those situations is unlimited. So, eye watering amounts of monies can be paid out.

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 make sure that we protect ourselves from the type of discrimination cases that can happen during the recruitment process.

ZC: That’s a fantastic case to demonstrate the pitfalls. I’ve worked with a lot of practices and one of the things that they’ve been really worried about is note keeping. Would you say that it’s always wise to make notes when you are interviewing candidates and keeping those notes on file? 

SB: Yes, absolutely. I think people are under trained about the recruitment process. 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 which you shouldn’t ask in respect of their health or their personal issues and so on. But ultimately those that are well trained in recruitment and have experience in it will make good notes. You should keep them on file because if somebody then goes and 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 of time. 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.

At the moment, 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. So, right now I’m suggesting to people to keep their notes a little bit longer, maybe six to 12 months. Also keeping your notes a bit longer means, if another position arises, you might be able to revisit them and if a person narrowly missed getting the job but were actually quite good, if your GDPR policy allows you, you’d be able to go back to them. So, there are several advantages to keeping your interview notes.

ZC: To people that are wanting to look for somewhere to help them with any guidance and if they’ve not got an HR specialist that works for the business, is there somewhere online or would you recommend something else?

SB: Yes, there are lots of places where you can go for information. I know that if you are a Practice Plan customer, you have access to lots of podcasts and information online to help you. I have lots of social media channels and what’s nice about it is that it is specific for the dental industry. There are places where you can get general employment advice, but it won’t always suit this industry. Always try to look for more dental specific providers because it will be for you and your business.

I would advise people to be careful because on social media I have come across chat rooms where people are trying to discuss what the current situation is in respect of certain laws and legislation, and I’ve seen people googling American law and putting that forward as the current situation. My reaction is, “Oh no it’s not. That’s where it’s in America, not over here” or “That may have been the situation 20 years ago”. But the law moves so rapidly and changes so quickly you should try and keep up to date with it. And even if you haven’t got a HR provider, quite often people like me will speak to you and help guide you in the right direction.

ZC: One last question, is it wise to have a second party in the interview stage? Someone that can be present and take notes?

SB:  Yes, it is. 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 there 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. However, you could look elsewhere. It might be good to get a colleague from elsewhere to come and help and assist you with that.

ZC: Thanks, Sarah. Hopefully these tips will help people navigate the recruitment process safely.

About Sarah

Sarah Buxton specialises in acting exclusively for dentists, dental managers and dental practice owners in all aspects of HR and employment law and is a director at FTA Law. Sarah advises dental practices on managing and motivating their staff, dealing with sickness absence, assisting with making changes to employment contracts and, if needed, how to bring the employment relationship to an end.

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