The Recruitment Process: a Minefield of Discrimination

When an organisation starts to look for the latest, fresh-faced, energetic individual to join the team (terrible use of language for this article, but we’ll come to that later), it is an exciting time. The company is growing and new experience and personality will be added to the business. Hiring is a sign of growth, development and upwards movement, positive signs for every enterprise. So why is it that during the recruitment process human resources people start to look nervous and sweaty? Simple: discrimination.

First, the law

The Equality Act 2010 (which replaced the Race Relations Act 1976 and the Disability Discrimination Act 1995), seeks to address issues of bias regarding; “age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity.” It is the all-encompassing piece of legislation that imposes a level playing field for recruitment and employment.

The legislation is long, so to help you (the employer) we thought we would provide a nutshell guide to avoiding discrimination in the interview process.

The right to work

It is a legal requirement that all employers ensure the eligibility of potential employees to work in the UK. Simple? Not quite. Asking to view their visa or valid passport is acceptable, asking if an applicant can speak fluent English (when this isn’t a requirement of the position) is not acceptable –

Protected characteristics

The following are “protected characteristics” under the Equality Act and cannot be probed in an interview or stated as requirements in an advert of job specification (with limited exceptions):

  • Age
  • Being or becoming a transsexual person
  • Being married or in a civil partnership
  • Being pregnant or having a child
  • Disability
  • Race including colour, nationality, ethnic or national origin
  • Religion, belief or lack of religion/belief
  • Sex
  • Sexual orientation

You should also note that discrimination can be found if:

  • An applicant is associated with someone who has a protected characteristic, e.g. family or friend
  • A third party has complained about discrimination or is supporting someone else’s claim

The job advert

The first thing you will do when hiring is create an advert. Bearing in mind the list of protected characteristics, and referring back to our introduction, one must be careful not to use discriminatory language. “Energetic”, “fresh faced” and “dynamic”, as examples, could be interpreted by older workers as language that discriminates. Setting a minimum level of experience (e.g five years) also has the potential to discriminate against younger workers who may have the skills and abilities to carry out a job’s functions. You are also not allowed to ask the date of birth of an applicant as part of the application process, however, you are allowed to ask an applicant’s date of birth as part of equality monitoring.

We hope it goes without saying that you cannot request that “only white applicants should apply”, or that “no gay applicants will be considered”. To show that you are proactive it is always advisable to include a statement in your advert such as “We are an equal opportunities employer.”

The job specification

Much like the job advert, the precise wording of a job specification is crucial. The key to getting it right is a comprehensive understanding of what the person(s) who will be employed is to undertake. Is fluent English an essential component of the position? If not, you shouldn’t be asking whether an applicant has the ability to speak English fluently.

There are very narrow exceptions to inquiring about proscribed characteristics i.e. when the job function has a specific requirement. One example could be where being Catholic is integral to the position (providing Catholic ministry), but requiring that an applicant be Catholic to carry out an administrative function would be discriminatory.

When discrimination is legally prescribed

Age discrimination is permitted, for example, in situations where someone under the age of 18 applies for a position to serve alcohol – this would be illegal under the Licensing Act 2003.

Applying positive actions (AKA positive discrimination) is permitted if an applicant has a protected characteristic AND:

  • Are at a disadvantage
  • Have particular needs
  • Are under-represented in an activity or type of work

The last step

If you’ve followed all the guidance and instructions available (excellent advice can be found on the Equality & Human Rights Commission website here) and have done your utmost to ensure there is no discrimination in your recruitment process, congratulations! But it doesn’t stop there. You should also keep meticulous records of your recruitment and selection process and the motivations for your final selection of a candidate, preferably for a minimum of 12 months. Any applicant that feels there has been discrimination in the recruitment process can request that you complete a 20-page questionnaire about the recruitment process. Although an employer is under no obligation to complete the form, should the matter reach a tribunal, it can be inferred that discrimination has taken place by not completing the form.

Discrimination in the workplace, whether for an applicant or an employee, is terrible, unnecessary, unfair, and thankfully, illegal. Yes, trying to comply with the Equality Act can seem a little laborious, but once a company has the processes in place, adhering to them becomes second nature and very rewarding.

Of course, tribunals and the courts will be where the real test of whether an advert, job description or interview questions have  breached the Equality Act, but as much of the law is still to be tested, it is better to err on the side of caution if you are unsure.

Happy recruiting!

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