Employment and pensions

UK Employment Law Coffee Break: AI in HR and recruitment, neuroinclusive interviews, and ET reforms

Published on 16th May 2024

Welcome to our latest Coffee Break in which we look at the latest legal and practical developments impacting UK employers

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Government guidance on responsible AI in HR and recruitment

The Department for Science, Innovation & Technology (DSIT) has released guidance to assist organisations that use artificial intelligence (AI) in recruitment and ensure that they are adhering to the UK government's AI "high level principles" for the regulation of AI.

The government, per its AI white paper of March 2023 and consultation response of February 2024, will not be introducing new regulation on AI as it stands. Instead, existing UK regulators will apply their existing powers within their respective jurisdictions guided by the "high-level principles".

While there is no overarching "regulator" for general workforce or employment matters, DSIT's guidance addresses any subsequent lack of clarity on how the high-level principles apply to AI used for recruitment. Specifically, it outlines how organisations should adopt AI assurance mechanisms to support the responsible procurement and deployment of AI systems in HR and recruitment.

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Making interviews more neuroinclusive

With heightened awareness of how disabilities and neurodivergence can have an impact on an applicant's ability to fairly represent in a recruitment process, some employers have been reviewing how their organisation assesses potential new staff.  

It is important that both physical and "hidden" disabilities are taken into account throughout the recruitment process and this requires considering the impact these conditions could have on the accessibility of job adverts, application forms and online testing and performance at interview.

John Lewis has taken the decision to publish interview questions online so candidates can view the possible questions and prepare what they would like to say in advance. The key driver behind this decision was to reduce nerves at interview and make the process more neuroinclusive.

The published interview questions are focused on three key categories: "Happier Partners", "Happier Business" and "Happier World". These categories are further split out into clearly specified sub-categories such as "teamwork and collaboration", "problem solving", "action and ownership" and "customer focus". This structure gives candidates a clear roadmap to the questions that will be used to establish their competence in each key area.

Neurodivergent applicants, including those with autism, ADHD and anxiety disorders often experience heightened anxiety in unfamiliar situations and understanding questions in advance can help reduce the impact of this. Neurodivergent individuals can excel when given the opportunity to process information and prepare a response and this enables these candidates to demonstrate their true capabilities and knowledge. Difficulties with verbal communication or on-the-spot thinking are accommodated by giving neurodivergent applicants the opportunity to organise their thoughts and more clearly articulate their answers in interview.

A more transparent interview process generally leads to a better candidate experience for all applicants and publishing questions in advance arguably moves away from the skill of being able to handle surprise questions and focuses in on the skills and knowledge relevant to the particular role.

What else can employers consider to make recruitment more neuroinclusive?

Creating a better recruitment experience leads to a positive perception of an organisation, while ensuring that disabilities (both hidden and apparent) are considered boosts inclusion and the recruitment of a more diverse talent pool.

However, it is important to remember that a neurodivergent applicant may be disabled for the purposes of the Equality Act 2010, which prohibits an employer asking a job applicant about their health or any disability at any stage in the application or interview process save in limited circumstances.

While one of these circumstances is to enable an organisation to find out if an applicant needs reasonable adjustments, some applicants will inevitably be reluctant to alert an employer to potential difficulties at this stage and either not have the opportunity to therefore showcase their true abilities, or even withdraw from the application process where it follows a format with which they might struggle.

Employers can take the following steps to make their recruitment processes more inclusive/neuroinclusive:

  • Use clear and concise language in job descriptions and advertisement and clearly outline the essential skills and responsibilities.
  • Focus on skills not personality traits.
  • Allow candidates to submit applications in different formats where possible: written, audio, video.
  • Provide clear information about the interview process, including format, duration and share interview questions in advance.
  • Offer flexible interview formats and provide an environment with minimal distractions.
  • Educate interviewers on neurodivergence and how this can affect interview performance (for example, eye contact, communication skills, anxiety, processing of information).
  • Consider introducing practical assessments, job simulations or on-the-job assessment.

Once an applicant is offered a position, the onboarding process should be used to discuss and agree any reasonable adjustments needed for the employee and to ensure that those managing the employee are aware of any particular difficulties the individual may face.

Different ways of thinking drive innovation and engagement, and inclusive recruitment practices are critical to employers attracting diverse candidates. The advertising and recruitment process is a key opportunity for employers to show their commitment to inclusion. Organisations should therefore keep their recruitment processes under review and look at how they can be adapted and evolved to reach all potential recruits.


Employment Tribunal System reform: New dates announced

HM Courts and Tribunals Service is continuing its roll-out of the digitalisation of the Employment Tribunal process. When fully operational, the MyHMCTS portal (for represented parties) and the CitizenUI portal (for litigants-in-person) will enable claims, responses and correspondence to be submitted, cases to be reviewed and applications to made digitally. The aim is to make the overall process "more efficient, ensuring the tribunal parties and their representatives have access to the right information at the right time".

These platforms have been operating a limited basis in certain regions; for represented respondents the ability to present an ET3 via the MyHMCTS portal has only been available in the Glasgow, Leeds, Bristol and Nottingham tribunals on a limited basis for those wishing to use the new system.  

Making a claim

HMCTS has now announced that from 30 May 2024, represented claimants will be able to submit online ET1s via MyHMCTS in the Scotland, Leeds, Midlands East, South West England or East, Central and South London regions, followed by a roll-out across the other regions across the next few months.

It is intended this roll-out will be completed by the end of summer 2024 at which point it will become mandatory for represented claimants to lodge their ET1s this way.  

Respondents will continue to be notified by the tribunal when a claim has been lodged. 

Responding to a claim

For represented respondents, it is currently anticipated that it will become mandatory to lodge an ET3 via the MyHMCTS portal across all tribunal regions by October 2024. However, official clarification of this date and whether it will be restricted to certain claims is awaited.  

In the meantime, represented respondents should continue to submit their ET3s in accordance with current practice, unless they are notified by the tribunal service that the digital option via MyHMCTS is available to them, should they wish to use it. Again, a phased roll-out is in place expanding on the initial trial sites. HMCTS has published a number of short videos to support professional representatives in this process. 

Where an organisation is already a professional court user, a registration may already have been made with MyHMCTS. If so, the relevant administrator in the organisation will be able to add internal users for the purposes of responding to and managing ET claims going forwards.  

In a series of FAQs, HMCTS has stated that it will "need to keep improving our service and replace existing services or integrate with them" so it is likely that we will see the system adapted as the roll-out continues and HMCTS seeks to make the process as seamless and straightforward for all parties as possible.  

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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