Avoiding the Pitfalls of Recruitment

It is important to remind employers that the law provides protection to job applicants (indeed potential applicants) just as it lays down protection for successful applicants who become employees or workers. One such area is discrimination and protections provided under the Equality Act 2010, which outlaws discrimination, victimisation and harassment in relation to recruitment. Protected Characteristics are disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

When is discrimination in recruitment unlawful?

An employer must not:

Discriminate against or victimise a person;

• in the arrangements the employer makes for deciding to whom to offer employment.
• as to the terms on which the employer offers employment.
• by not offering employment.

In relation to employment, harass a person who has applied for employment.

Those who can be liable for discrimination in recruitment include employees of the employer (for example those conducting interviews), recruitment agents and publishers of job advertisements.

What are “arrangements”?

These are construed broadly and include:

• The format and content of application forms;
• The physical arrangements such as location and timing of interviews;
• The job and person specifications.

For example, a disabled person might complain that reasonable adjustments have not been made to enable them to attend an interview, or a woman with childcare responsibilities might complain of indirect sex discrimination if she is only offered an interview in the evening when she would otherwise be looking after her children.

Someone who has not even applied for a job can theoretically bring a discrimination claim in respect of the employer’s recruitment “arrangements”. In all likelihood, such a claim would be based on the content of the job advertisements or a statement made by the employer (or recruitment agent) in response to an enquiry.

Statutory Codes of Practice

Where applicable employers (and recruiters) should follow recommended or best practice as contained within any relevant statutory code. In relation to discrimination the Equality and Human Rights Commission (EHRC) has produced the Employment Statutory Code of Practice to support the Equality Act 2010.

The EHRC code sets out recommended practice specifically in relation to recruitment. This includes guidance on:

Training participants in the interview process

Employers need to be able to show that all staff involved in the selection process had received training on the employer’s Equality Policy and its application to recruitment, including interviewing techniques to help them:

Recognise when they are making stereotyped assumptions about people.

Apply a scoring method objectively.

Prepare questions based on the person specification, and the information in the application form.

Avoid questions that are not relevant to the requirements of the job.

Being able to demonstrate that guidance and best practice has been followed will hopefully minimise the risk of allegations of discrimination, or ultimately provide the employer with a “reasonable steps” defence.

Creating a paper trail

The EHRC Code suggests that every selection decision, from shortlisting to appointment, is equally important and recommends that employers keep records that will allow them to justify each decision, and the process by which it was reached. Records should also demonstrate that a selection decision was based on objective evidence of the candidate’s ability to do the job satisfactorily, and not on assumptions or prejudices about the capabilities of certain groups of people sharing protected characteristics.

If you are an employer or prospective employer and wish to receive further advice in relation to the above or any employment law issue, contact David Dixey of Holmes & Hills LLP on 01376 320456 or dd@holmes-hills.co.uk.