How recruiters can avoid falling into the discrimination trap

Posted by Debra Gers on

The right policies and procedures are essential to preventing claims

The new government has promised to help business create two million new jobs and three million apprenticeships. Latest labour market statistics show a rise in the proportion of full-time workers but, as recruitment rises, so does the potential for getting the recruitment process wrong. A well-considered recruitment process cannot only help in recruiting the most appropriate person for the job with regard to skills, experience and potential, it can also minimise the risk of discrimination claims.

The law goes to great lengths to protect job applicants from discrimination. The Equality Act 2010 prohibits discrimination, harassment and victimisation in relation to nine ‘protected characteristics’: age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

An employer is liable for a discriminatory recruitment process because it is liable for its employees’ actions during the course of their employment (the employees can also be individually liable potentially). Organisations can only escape liability if they can show they took all reasonable steps to prevent the discrimination occurring, for example, by having in place an equal opportunities policy and training staff in good recruitment practices.

Pre-employment health and disability questions can disadvantage disabled applicants and are banned at the application stage except where, for example, it is necessary to establish whether an applicant can carry out a function intrinsic to the work concerned, or where reasonable adjustments need to be made in order to enable disabled candidates to attend for interview.

Employers need to think carefully about the wording of job advertisements and the media used for them. Will a wide enough pool of people see it, for example? Employers should take care to use neutral language and include a statement of their commitment to equal opportunities. Job descriptions and person specifications also need careful wording. Employers need to be able to justify statements about “essential” and “desirable” characteristics for the role advertised. They should also make sure that more than one person is involved at the short-listing stage, and that they consider only the information on the application form rather than any second-hand knowledge or assumptions about candidates.

The recruitment process can often go wrong at the interview stage. Assumptions are made that someone is too old or too young, or even too overweight to do the job in question. In the case McCoy v McGregor [2007], an advertisement for a sales representative stated that “youthful enthusiasm” was required. McCoy was 58 with 30 years’ experience. At the interview, he was asked questions which linked his age with energy, motivation and enthusiasm. Two younger and less experienced people were appointed. He brought a successful age discrimination claim and reportedly received compensation of £70,000.

In the case Corus Hotels v Woodward [2006], Woodward applied for the position of receptionist. The first question asked was whether she had children. She was a single parent with a 12-year-old son. She was told to be realistic about the consequences of the job on her private life and advised to keep looking for other jobs. An employment tribunal held that the interview had been conducted in a “crassly sexist manner” and awarded her £5,000 for injury to feelings (later reduced to £4,000 by the EAT).

Interviews are also the time when unconscious bias may influence the decision making process. Research shows that nearly half of employers are biased against obesity. This is worrying not only because many obese people do not have any health issues but because in the case Karsten Kaltoft v Billund Kommune [2014] the European court held that obesity can constitute a disability in certain circumstances.

Unconscious bias can also arise over regional accents and the perception that people who speak in a certain way are more intelligent or friendlier than others. Ensuring that interviews are carried out by more than one person and reflect a mixed age, race and sex should reduce this risk.

*Article first appeared in People Management online.

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Debra is responsible for the firm’s public employment training programme.

Debra Gers
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