Recruitment and discrimination – avoiding the pitfalls

The recent successful Employment Tribunal claim by a junior lawyer who was treated unfairly during recruitment by her prospective employers is a timely reminder of the importance of organisations having a clear and robust recruitment process in place in order to avoid potential claims of discrimination.

So how can employers ensure that their recruitment process is watertight?

Firstly, ensure that your organisation has a recruitment policy in place and that it is reviewed regularly to ensure compliance with employment law. Your HR team can support with this.

The characteristics protected by the Equality Act 2010 against discrimination are:

• age
• disability
• gender reassignment
• marriage/civil partnership
• pregnancy/maternity
• race
• religion or belief
• sex
• sexual orientation.

Making decisions about a candidate during the process based on any of these characteristics could potentially be discriminatory.

Job Advert

This is your organisation’s opportunity to attract as many candidates as possible. It should be open to everyone and inclusive. For example, the use of job titles such as Chambermaid or Groundsman would suggest that people of the opposite sex are prevented from applying. However, if a job role has certain “occupational requirements”, then you may have to make the advert more gender specific. For example, if you were recruiting a care assistant for a vulnerable adult or child.

The advert should focus on the skills, experience and (possibly) qualifications required for the role. Be clear about what is essential for the role. This should also prove helpful when you come to shortlisting.

Application Process

As more organisations move over to electronic application systems, it is becoming easier to keep applicants’ details anonymous until they have been shortlisted for an interview. This helps to ensure that selection for an interview is entirely focused on the candidate’s skills and experience and significantly reduces the risk of discrimination at this stage. Even if your application process is still a paper-based one, it might be worth considering ways of making applicants more anonymous before an interview. Details such as name, age and gender can be removed from CVs or application forms.

Equality/Diversity Monitoring

Any questionnaires of this nature should always be kept separate from any application and should be anonymous.

The Interview

Ideally, anyone participating in the interview process should be fully conversant with the organisation’s recruitment policy. A small investment in training in equality, diversity and inclusivity or dealing with unconscious bias will pay dividends in improving the skills of interviewers. Interview questions should be consistent for each candidate, and a clear grading scheme will help to ensure fairness when making a final evaluation and comparison.

Feedback

Whether it is your practice to automatically give feedback to unsuccessful candidates or not, you should be prepared to give feedback if the candidate requests it. The feedback should be focused on the essential requirements of the role and whether the candidate met those sufficiently rather than on any personal opinion of the interviewer.

The Job Offer

For some roles, the offer of employment may have certain conditions attached to it, such as DBS and security checks, Occupational Health (OH) screening and obtaining satisfactory references. If any of these pre-employment checks throw up any concerns on your part, it would be reasonable to meet with the candidate and have an open discussion with them at the earliest opportunity. For instance, if they have disclosed a disability to OH, this would be a good time to talk about what adjustments might be made to their working environment or working pattern before their starting date.

Keep records

Ensure that all records of the recruitment process (application forms, interview notes, etc.) are kept and stored confidentially for at least six months, even for unsuccessful candidates, in case a claim is brought against the organisation for discrimination.

Contact our employment law solicitors today

If you have any questions regarding recruitment in your business, please do not hesitate to contact a member of the employment law team at Ashtons Legal.

Please get in touch with our specialist Employment Law team through this website or by calling 0330 191 4836.

Our partners at Ashtons HR Consulting are also on hand to assist you.