Employment Law: 10 Legal Mistakes to Avoid When Recruiting

Employment law during recruitment often makes SME owners nervous. "What if I ask the wrong question in an interview?" "Can I keep CVs on file?" "What's actually legal in a job ad?"

The good news: the rules are simpler than they appear. And getting the essentials right doesn't require a dedicated legal team or lengthy training. You just need to know the most common pitfalls — and how to avoid them.

Here are the 10 most frequent mistakes, their potential consequences, and how to fix them.

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Mistake #1: Asking Discriminatory Interview Questions

The problem: certain questions are prohibited because they can lead to discrimination on protected grounds. In the UK, these include age, sex, race, religion, disability, pregnancy, sexual orientation, marital status, and several others under the Equality Act 2010.

Examples of questions never to ask:

• "Are you pregnant or planning to have children?"
• "What religion do you practise?"
• "How old are you?" (outside of roles with specific legal age requirements)
• "Do you have children?"

The risk: a discrimination claim can result in an Employment Tribunal claim with no cap on compensation for discrimination, significant reputational damage, and in some cases criminal liability.

The good practice: only ask questions directly related to the competencies required for the role. If you need to know whether a candidate can work weekends, ask exactly that — without going through questions about their personal circumstances.

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Mistake #2: Making Verbal Promises Without Written Confirmation

The problem: you tell a candidate "you've got the job, you can hand in your notice" before sending the contract. The candidate resigns. Then something changes — funding falls through, the role is frozen, or you change your mind.

The risk: a verbal commitment can be recognised as a binding offer of employment by Employment Tribunals, potentially requiring the company to pay significant damages to the candidate.

The good practice: only confirm employment in writing (an email counts as formal confirmation). Wait for the contract to be signed before encouraging a candidate to resign. If there's a delay, issue a written conditional offer letter with a clear validity date.

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Mistake #3: Mishandling Candidate Data (GDPR/UK GDPR)

The problem: you've kept CVs in an inbox or on a hard drive for 5 years without ever deleting them. Or you share CVs with third parties without the candidate's consent. Or you don't inform candidates what you're doing with their data.

What the law requires:

• Inform candidates about how their data will be used (mention in the job ad or acknowledgement email)
• Only retain their data for as long as necessary: typically 6–12 months after the end of the recruitment process (ICO guidance)
• Allow candidates to exercise their rights (access, rectification, deletion)

The risk: fines up to 4% of global turnover (or £17.5 million) for serious breaches, plus serious reputational risk.

The good practice: use a tool (ATS or otherwise) that automatically manages retention periods and includes GDPR notices in your candidate communications.

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Mistake #4: Writing a Discriminatory Job Ad (Without Realising It)

The problem: some job ad formulations are discriminatory, even unintentionally. Common examples:

• "Recent graduate" or "young professional" → potential age discrimination
• "Native English speaker required" → potential race discrimination
• "He will be responsible for..." → gender discrimination
• "Energetic, dynamic individual" (without role-specific justification) → potentially ageist

The risk: discrimination complaint, fine, and bad publicity.

The good practice: write your ads using gender-neutral language and avoid any criterion unrelated to objective competencies. Have a second person review your ads if you have any doubt.

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Mistake #5: Poorly Defining the Probationary Period

The problem: the probation period is not well defined in the contract, or it hasn't been extended properly, or its duration isn't clear.

What good practice looks like: while UK law doesn't mandate specific probation lengths, the Worker Protection Act and good employment practice require that:

• Probation periods are clearly specified in the contract
• Any extension is communicated in writing and with reasonable notice
• The employee is given clear feedback during probation about performance expectations

Common probation lengths in the UK:

• Entry to mid-level roles: 3 months
• Mid to senior level: 6 months
• Director level: 6–12 months

The risk: a poorly managed probation period with no written feedback or clear criteria can make termination much more complex — and potentially lead to unfair dismissal claims in some circumstances.

The good practice: state the probation period clearly in the contract. Hold a formal review mid-way through and at the end. Communicate any extension in writing with reasons.

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Mistake #6: Not Giving Adequate Notice to End Probation

The problem: you decide to end someone's probation on the same day or with 24 hours' notice, when their contract stipulates a longer notice period.

What the contract and law require: during probation, the statutory minimum notice is 1 week after the first month of employment. However, the contractual notice period written into the employment contract overrides this. If you've written "2 weeks' notice during probation," you must give 2 weeks.

The risk: failure to give contractual notice during probation = liability to pay notice pay in lieu.

The good practice: as soon as a decision to end probation is made, review the contractual notice period and notify in writing with appropriate lead time.

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Mistake #7: Using Unvalidated or Poorly Disclosed Assessment Tools

The problem: some personality or aptitude tests bought online aren't scientifically validated, or are used without informing candidates — or without feeding back results.

What good practice requires: any selection tool used in recruitment should be relevant (linked to job requirements), reliable, and candidates should be informed of its use. Under UK GDPR, any automated decision-making that significantly affects a candidate must be disclosed.

The risk: legal challenge if a candidate can show the tool was discriminatory or used without appropriate disclosure.

The good practice: only use recognised tools (SHL, Korn Ferry, MBTI as a complement to other tools) and inform candidates of their use in advance. Share results with those who request them.

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Mistake #8: Ignoring Right to Work Verification

The problem: you hire someone without properly verifying their right to work in the UK. This is a statutory requirement, not a recommendation.

What the law requires: before or on the first day of employment, you must check and copy documents that prove the person has the right to work in the UK. Since 2022, this can be done digitally for many document types through the Home Office online checking service.

The risk: a civil penalty of up to £20,000 per illegal worker if you haven't done a compliant check. Criminal liability if you knew the worker didn't have the right to work.

The good practice: build right-to-work checks into your onboarding checklist. Document and date-stamp your checks. Use the Home Office's online checking service where applicable.

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Mistake #9: Not Documenting Recruitment Decisions

The problem: you select or reject candidates without keeping any written record of the reasons behind your decisions.

The risk: if a candidate brings a discrimination claim, you'll be unable to demonstrate that your choice was based on objective, role-related criteria.

The good practice: keep completed evaluation rubrics, interview notes (with the objective criteria assessed), and documented reasons for each decision. An ATS with decision history protects you automatically.

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Mistake #10: Forgetting Reasonable Adjustments in the Process

The problem: a candidate discloses a disability or health condition, and you fail to consider whether any adjustments are needed to the interview process itself. This is a legal obligation under the Equality Act 2010.

What the law requires: if a candidate informs you of a disability, you must consider reasonable adjustments to remove barriers — whether that's providing materials in an accessible format, allowing extra time, adjusting the interview location, or offering an alternative format.

The risk: a failure to make reasonable adjustments is itself a form of disability discrimination, regardless of the final hiring decision.

The good practice: include a standard line in your interview invitation asking whether any adjustments are needed. Make it easy for candidates to request them without stigma.

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Conclusion: Compliance Isn't a Barrier — It's a Safeguard

These 10 mistakes might seem daunting. In reality, most come down to a few simple habits: documenting your selection criteria, sending acknowledgements, deleting CVs after the appropriate period, and avoiding questions unrelated to the role.

A structured recruitment process — with the right tool — naturally incorporates these good practices without extra effort on your part.

Compliance isn't in tension with good recruitment. It's a discipline that strengthens it.

Want a compliant, structured process from the very first job you post? Discover Seeklon — built-in GDPR compliance, decision traceability, and recruitment guides aligned with legal best practice.