Spring – a time of new beginnings – blossom, elections and the start of Series 7 of The Apprentice. However, unlike the democratic process to select political representatives, according to the BBC, Lord Sugar is sole decision maker when it comes to boardroom decisions in The Apprentice. Looking back at six series of the show, what lessons can be learned from his recruitment techniques?
1. First things first – what does the company need?
This year’s series is fundamentally different – instead of vying for a six figure salary, Series 7 sees the candidates battling it out for an investment of £250,000 into their own start up business. There is a lesson to be learned here: before recruiting, a business should analyse its needs carefully. Lord Sugar looks for entrepreneurial spark, so recruiting The Apprentice into an employment position was arguably doomed to failure.
Businesses are well advised to look at the full range of recruitment options. Is an employee really required or are other arrangements (e.g. consultants, partners) viable? Often these can be more cost effective and flexible (although the different tax requirements and other legal implications should be explored fully). Of crucial importance is that the skills required to complement the existing workforce and satisfy the demands of the business are carefully assessed. It is also worth reviewing the success (or not) of past hires and identify any failings in the existing recruitment process.
2. ‘Position vacant’ – advertising advisedly
Many are aware that it is illegal to discriminate against certain protected groups during the recruitment process and it is relatively rare to see blatantly unlawful job advertisements. Some businesses, however, fall foul in their advertising through less obvious misdemeanours.
For example, using words such as ‘youthful’, ‘energetic’ or ‘mature’ may indicate unlawful age discrimination, whilst requiring a particular level of experience might discriminate indirectly against the young or old and so needs to be capable of being justified. The same rule applies to requirements for full-time hours (which might discriminate indirectly against individuals who have a particular religious belief, or women as primary child carers). Employment tribunals are adept at asking probing questions about the reasons for such requirements.
The location of adverts might in itself be discriminatory, given that particular publications may have specific gender or ethnic readerships. Employers should consider the medium in which advertisements are placed to ensure a sufficiently wide range of potential candidates is reached. The Apprentice application process is stated to be via a web-based application form. It is not inconceivable that an allegation of age discrimination might be levied against an employer who recruits only in this way on the basis that it discriminates indirectly against older people.
3. Remember all men are born equal
The requirement to avoid unlawful discrimination is ongoing throughout the recruitment process (and indeed beyond). During the last six series of The Apprentice, candidates’ age, gender and (in relation to women) childcare responsibilities were referred to with alarming frequency.
Awareness of the requirement not to discriminate (whether directly, indirectly or by way of harassment) against an individual for a reason related to a protected characteristic (whether age, gender, disability, race, religion, sexual orientation or otherwise) should pervade every aspect of the process.
A discrimination claim may be brought by a job applicant against more than just the potential employer, for example, employees or recruitment agents involved in recruiting on behalf of the employer. So, had past candidates termed ‘old’, ‘young’ etc been so minded, perhaps they could have challenged Lord Sugar, his advisers, the BBC and its wide range of production partners? All employers who are recruiting should be careful to ensure that those involved in the recruitment are adequately skilled and trained for the purpose.
4. Too much information?
The Apprentice has a large production team: on each task, four crews will be filming. In reality, employers will not have professional footage of their interview process. Consequently, in case of challenge, it is necessary to look for other evidence of what happened and the ‘papertrail’ becomes important. The individual making the challenge is likely to have created a written record of events. Has the employer done the same? If so, will its content help (or damage) the employer’s case? If the employer’s contemporaneous papertrail is non-existent or flawed, then the employer is likely to face significant problems. This is particularly so in discrimination claims when the burden shifts relatively quickly to the employer to rebut an inference of discrimination.
5. And finally…
Although The Apprentice selection process ensures that by the time the show is filmed candidates have been assessed by a psychologist, references have been obtained and scrutinised and other checks have been made, in real life such ancillary matters are often neglected.
‘Final checks’ are often brushed aside as a formality once a candidate has been selected, but they are important – in particular, checking immigration status, securing satisfactory references and ensuring that the necessary qualifications and regulatory approvals are in place. Further, recording employment terms in writing is essential to comply with statutory requirements. A list of the basics can be found in Part I of the Employment Rights Act 1996.
Now all that remains is to wait and see what additional lessons Series 7 provides…
Lisa Lewinsohn is a solicitor with Withers LLP