Most small employers think of employment law as something that starts on someone's first day. It does not. Under the Equality Act 2010 a job applicant is protected from the moment they see your advert, and unlike unfair dismissal there is no qualifying period to get past. Someone who applied, was rejected, and never set foot in your building can bring a discrimination claim on the strength of how the process was run.
That sounds alarming and mostly is not, because the fix is process rather than law. A recruitment process that is written down, applied identically to everyone and documented as it happens is very difficult to attack. One run on instinct, with no notes, is difficult to defend even when the decision was entirely fair. The claim usually turns on whether you can show what happened, not on whether you meant well.
What is actually protected, and when
The Equality Act sets out nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Protection applies at every stage of recruitment — the advert, the application form, shortlisting, interview, the offer, and the withdrawal of an offer.
Two features make this different from the rest of employment law. There is no minimum service requirement, because the person is not an employee. And compensation is uncapped, and can include an award for injury to feelings set by reference to the Vento bands, which are uprated annually. A recruitment claim is not a small-money risk.
Timing has just changed, too. Under the Employment Rights Act 2025, the time limit for bringing most tribunal claims rises from three months to six months where the act complained of falls on or after 1 October 2026. Acts arising wholly before that date keep the old three-months-less-one-day limit. Separately, for Acas early conciliation notifications presented on or after 1 December 2025, the conciliation period can run for up to 12 weeks. In practice that means a rejected candidate can surface considerably later than employers have been used to — which has direct consequences for how long you keep your notes.
Nobody wins a recruitment claim by proving they are a fair person. They win it by producing the scoring sheet they filled in at the time.
The advert: what quietly excludes people
Adverts cause more trouble than interviews, because the wording gets written quickly and then sits in public where anyone can read it.
Age is the usual culprit, and rarely deliberately. Recent graduate, young and dynamic, and digital native all signal an age preference. So does asking for a minimum number of years' experience when what you actually need is a level of competence — five years' experience excludes the person who reached the same standard in three. Ask for the skill, not the duration.
Watch the other characteristics too. Requiring a driving licence for a role where driving is incidental can disadvantage disabled applicants. Specifying a phrase such as excellent English when the job needs clear communication with customers invites a race discrimination argument. Advertising only through your existing team's networks tends to reproduce your existing team, which is a risk in itself. And any requirement for full-time hours or evening and weekend availability that is not genuinely necessary can amount to indirect sex discrimination, because it disproportionately affects people with caring responsibilities.
The test to apply to every line of the advert is simple: is this genuinely necessary to do the job, or is it a description of the last person who did it?
Health and disability questions: the rule most small employers break
Section 60 of the Equality Act makes it generally unlawful to ask a job applicant about their health or disability before you have offered them a job or put them in a pool of successful candidates. It exists so that a recruitment decision is made on ability rather than on health information the employer should not yet have.
There are exceptions, and they are narrower than most people assume. You may ask in order to make reasonable adjustments to the recruitment process itself — do you need anything from us for the interview is a perfectly proper question. You may ask whether an applicant can carry out a function that is intrinsic to the job, with reasonable adjustments in place. You may ask for diversity monitoring, provided the answers are separated from the selection process. And you may make a conditional offer subject to a medical check afterwards, which is the route to use if health genuinely matters for the role.
What you cannot do is put how many days were you off sick last year on the application form. That single line, which appears on a great many small-employer forms copied from somewhere else, is the most common breach of this rule.
Score the same things, in the same order, for everyone
This is the whole defence, and it takes about half an hour to set up.
Before you advertise, write down four to six criteria drawn from the job itself, and how you will assess each one. For example, a workshop supervisor role might be scored on practical competence, supervising others, quoting and costing accuracy, customer handling, and reliability — each marked 1 to 5, giving a maximum of 25.
Every application gets scored against those criteria and nothing else. Every candidate is asked the same core questions in the same order, with follow-ups where you need them. You write the scores down during or immediately after each interview, not from memory a fortnight later.
In practice that produces something like: three shortlisted candidates scoring 21, 19 and 14 out of 25, with a one-line note under each score explaining it. If a claim ever arrives, that sheet is what you hand to your solicitor, and it usually ends the matter. Its absence is what turns a defensible decision into a settlement.
Positive action is lawful; positive discrimination is not
The line here trips people up. Section 159 of the Equality Act allows you to take a protected characteristic into account when choosing between candidates, but only where you reasonably believe people with that characteristic are under-represented or disadvantaged, the candidates are genuinely of equal merit, and doing so is a proportionate way of addressing it. You cannot have a blanket policy of preferring a group; each case is judged on its own merits.
So encouraging wording in an advert, advertising in places that reach under-represented groups, and using the characteristic as a tie-break between two equally-scored candidates are all lawful. Appointing the weaker candidate because of a characteristic is not, and there is no small-employer exemption from that.
Keep the notes, and keep them longer than you used to
There is no statutory retention period for recruitment records. The standard advice was six months, chosen to sit just beyond the old three-month tribunal limit. With the limit moving to six months for acts on or after 1 October 2026, and conciliation capable of adding up to 12 weeks on top, six months is no longer enough. Twelve months is the sensible new floor.
Keep the advert, the application forms, the scoring sheets, the interview notes and the offer correspondence. Tell candidates in your privacy notice that you hold this and for how long, because that is a data protection requirement and unsuccessful candidates do sometimes make subject access requests. Then delete on schedule rather than keeping everything forever, which creates its own problem.
The checklist for your next hire
Write the criteria before the advert. Strip the advert of anything that describes a person rather than the job. Keep health questions out of the application form entirely. Score every candidate against the same criteria and write it down at the time. Have a second person sit in on interviews where you can. Make any offer conditional on right to work and references, and carry out the right to work check properly before the start date — the practical version of that is in the right to work check I nearly skipped. Then get the paperwork out promptly, which is where do you need a written employment contract for your first hire picks up.
None of it is difficult. It is the difference between a hire that is defensible and one that is merely well-intentioned — and given the real cost of a bad hire, a structured process pays for itself long before anyone ever threatens a claim.
Common questions
Can I ask a candidate whether they have children or plan to?
No, and it is one of the fastest routes to a claim. Questions about children, childcare, pregnancy or family plans have no bearing on ability to do the job, and asking them is powerful evidence of sex or pregnancy discrimination if the candidate is rejected. If your genuine concern is whether someone can meet the hours the role requires, ask about the hours directly and ask every candidate the same question. Be honest with yourself about whether those hours are genuinely necessary, because a requirement that is not can amount to indirect discrimination even where it is applied to everyone equally.
Can I say I want a recent graduate or someone young and dynamic?
Not safely. Both phrases indicate an age preference, and age is a protected characteristic, so the advert alone can support a claim from an older applicant who is rejected. The same applies to digital native, and to a maximum number of years' experience. Minimum experience requirements are risky for the same reason, because they exclude people who reached the standard faster. Describe the capability rather than the person: confident with our systems after basic training, or able to run a job from quote to invoice without supervision. That gets you the candidate you want without narrowing the field on age.
How long should I keep recruitment records for unsuccessful candidates?
Twelve months is now the sensible minimum. The old six-month convention was built around a three-month tribunal limit, but for acts on or after 1 October 2026 that limit becomes six months, and Acas early conciliation can add up to 12 weeks on top for notifications presented from 1 December 2025. Keep the advert, application forms, scoring sheets, interview notes and offer correspondence for the full period, then delete on a schedule. Say in your candidate privacy notice what you keep and for how long, since unsuccessful applicants can and sometimes do make subject access requests for exactly this material.
A rejected candidate has asked why they did not get the job. Do I have to tell them?
You are not obliged to give reasons, but a short factual answer is usually the wiser course. Explaining that another candidate scored more highly on two specific criteria is straightforward when you have the scoring sheet, and it very often ends the matter there. Silence or a vague brush-off is what tends to make people suspect the real reason was something else, which is how a query becomes a questionnaire and then a claim. Never invent a reason to be kind, and never give a reason that does not match your notes, because the mismatch is far more damaging than the original decision.
