Are all recruitment processes made equal?
Equality in the workplace is rarely out of the headlines these days with the #MeToo movement and the first year of mandatory gender pay gap reporting in the UK. However, while gender has been receiving a lot of media attention, employers must remember that it is only one of the characteristics protected under the Equality Act. While recruiting the right people is hard enough, what can employers do to ensure a fair, diverse and equal workforce? For most organisations, embedding a culture of equality starts with their recruitment practices. We’ll take a look at what steps employers should be taking.
The job description and person specification
When drafting the job description and person specification, you need to think objectively about the skills, experience or qualifications the candidate needs in order to perform the role. You need to avoid direct discrimination, for example, stating that the role is for male candidates only. There will be particular skills and experience needed to perform the role, but these requirements must be objectively justified to ensure they do not discriminate against one of the protected characteristics. You also need to avoid unnecessary minor requirements that are not a fundamental element of the role. If you are recruiting for a desk-based role but require an ‘active and energetic’ person, you would be at risk of discriminating against someone who is disabled. The best way to write your job description and person specification is to stick to the list of fundamental requirements needed to get the job done, and not make assumptions about the person who will be doing the job.
Remember to consider the language you are using when you advertise your vacancy, and where you advertise it. Advertising a role for a ‘waitress’ rather than stating ‘waiting staff’ or ‘waiter or waitress’, could open you up to sex discrimination claims. Avoid sweeping statements that imply a job is unsuitable for someone with a disability, or that you are unwilling to consider reasonable adjustments. You should also be careful to advertise the role widely and not limit it to publications that target specific groups as that could constitute indirect discrimination.
The job application
We always advise our clients to use a standard application form for recruitment. This has many benefits in terms of the consistency in assessing the applications and makes it easier to ensure you are not introducing any bias or discrimination into the assessment of the application. You can focus on the skills, experience and qualifications of the person compared to what is needed to perform the role, without getting distracted by protected characteristics.
Remember, you need to consider and make reasonable adjustments for disabled applicants. This may include the ability to provide supplementary information, or an alternative format if using your standard form would put a disabled person at a disadvantage.
You need to be very careful about making any pre-employment enquiries about an applicant’s health or disability, unless it is necessary for the role, and you cannot make a decision on an application on the basis of a requirement that could have an adverse effect on a protected characteristic. For example, if you reject candidates who have had a career break, you could be discriminating against women who are more likely to have taken a break to raise a family, or transsexual people who have taken time off for gender reassignment. This can put you at risk of successful indirect discrimination claims.
A note on the General Data Protection Regulation (GDPR) – if you use automated decision-making processes, for example an online screening system, to process your applications, you will be required under the new Data Protection Act (2018) to provide an alternative, human intervention to process the data.
The interview process
You are not normally required to interview, however an interview is a good way to ensure the applicant has the right skills and experience to perform the role.
If you decide to interview (by a face-to-face meeting, over the phone, or by giving a test to complete), you must ensure that your process does not unlawfully discriminate against an applicant. For example, you are not allowed to ask questions about a female candidate’s family situation, or whether she is planning on having a family. Making jokes about someone’s race or religion could constitute harassment, which is a form of discrimination. You are also required to make reasonable adjustments to the interview process if the candidate has requested them – for example, using a textphone for a telephone interview if the candidate has a hearing impairment. You should not change your decision to interview a candidate after they have told you, or you discover when they arrive, that they are disabled as this would put you at risk of successful direct discrimination claims.
Making an offer
Congratulations – you’ve found the best person for the job and made them an offer. If, at this point, they tell you they are pregnant, you should not withdraw the offer. You also cannot later dismiss them. A woman does not have to tell you she is pregnant during the interview process and a disabled person is not required to disclose their disability in accordance with the Equality Act 2010.
Many employers now use a diversity monitoring form, which also gives them a useful insight into the candidates they are attracting to their roles. When used properly, they can tell you if you are receiving applications from people with protected characteristics, which allows you to change your recruitment process accordingly. Be careful though, as you cannot use the information gathered through this process to make decisions on who to invite to interview. You need to separate out the monitoring forms from applications to avoid the risk of successful discrimination claims later on.
There are certain instances where someone’s protected characteristics can inform your decision. These can include religious organisations where a specific religion is required to perform the role, if you have signed up to a guaranteed interview scheme, or if you have a genuine occupational requirement. Getting your recruitment processes wrong can be a costly mistake to make. We live in a more litigious world, and the risk of an Employment Tribunal claim is a time-consuming and financial drain on your business. Getting your recruitment process right is vital to protect your business, and combined with training for your recruiting managers is a winning formula for a diverse workforce and employing the best people for the job.
Pam Loch is Managing Partner of Loch Employment Law and Managing Director of the Loch Associates Group.