Discrimination: avoiding claims during recruitment
18 December 2015
Helen Crossland advises on how to avoid claims of discrimination in the recruitment process
From the wording of a job advert to interview questions and requests for feedback, the recruitment process can be a minefield. A recent survey showed that despite the politically correct times we live in, it remains remarkably common for employers to advertise for "young, active workers" or to ask female candidates at interview about their plans for a family or mood swings, opening the way for a would-be age, disability or sex discrimination claim.
Data protection legislation also throws up challenges, even where a candidate has not been shortlisted. Staying alert to the main danger areas will go a long way to eliminate problems when searching for new staff.
First, it is important to ensure that the correct personnel handle the recruitment process, that they conduct it in line with any recruitment policy the company has and are equal opportunities aware/trained. A job specification should then be compiled focusing on the key duties and responsibilities of the vacancy, the skills or qualifications required and the job title, salary spectrum, location and hours.
While any requirements may be differentiated as 'essential' or 'desirable' and divided into a job or person specification, they should still be legitimately necessary and not indirectly discriminate against any particular groups, including on the grounds of age, sex, disability, race, religion or sexual orientation. The job advert should replicate this and avoid any statements or terminology that demonstrate a preference for certain categories, i.e. younger males, unless such requisites can be objectively justified as essential to the role.
Most businesses have the discretion to publish vacancies internally and/or externally. For equal opportunities purposes, external is best, although in certain instances it is prudent to advertise internally first or exclusively, including where the organisation has recently, or is about to, lay off workers.
Companies generally should adopt a policy that works best for the business
Companies generally should adopt a policy governing how vacancies are treated that works best for the business. This may involve advertising internally first, to retain and motivate existing staff (and limit recruitment time and costs), or to go public from the outset to attract a broader mix of candidates and maximise the chances of securing the best person for the post. To monitor the diversity of applicants/new hires, organisations may ask job applicants to complete an equal opportunities form, which ought to be withheld from those charged with the recruitment exercise so as not to influence the process that follows.
A sifting of paper applications against the job and person specification should be undertaken by those assigned to the recruitment process, which will ideally comprise of 2 managers. Those shortlisted should be asked whether they require any reasonable adjustments to assist them in the interview process – this is to account for any candidates who may need such help owing to a disability. Employers must accommodate those requests where they can. Where it is not feasible on cost or practicality grounds, employers are advised to seek legal advice before responding to the individual.
In terms of the interviews, recommended practice is to:
- keep meetings as formal as possible, conduct them in an appropriate setting and have at least 2 people from the company present
- incorporate a round of pre-prepared questions to be put to each candidate to test their ability to perform the role in hand to show a level playing field
- avoid questions about the interviewees' personal lives unless of key relevance to the role. If one of the interviewers goes off-piste with an unwise question, the other should advise the candidate it is not necessary to answer
- take notes, including of the candidates' responses
- conduct a post-interview debrief at which the interviewers' observations, scores (if applicable) and interviewees' suitability for the position are discussed and recorded.
It is a requirement of the Data Protection Act 1998 that any notes and documents derived during the recruitment process are retained for "as long as necessary". Since the Act permits job applicants to seek copies of any papers relating to them, extreme caution should be exercised when documenting anything that suggests they were not awarded the role because of their age/disability/sexuality/childcare commitments, rather than credentials for the role.
Unsuccessful candidates will often seek feedback, and in nearly all cases this will arise from their desire to build on any shortcomings in their application or performance. However, for some a seed may have been planted during the recruitment process, including by a remark or question, that rightly or wrongly they consider has gone against them.
Extreme caution should be exercised when documenting anything that suggests an applicant was not awarded the role on anything other than their credentials
If a request is made, the advised approach is to provide feedback in writing, objective and relevant to the job or person specification, without any remarks that may be taken by a rejected applicant to advance a possible belief that their rejection was in some way underpinned by a discriminatory decision. Failure to offer feedback may simply fan such a suggestion.
On identifying a front runner for the vacancy, a written offer should be made setting out the key terms of the employment (or engagement if the individual is to be taken on as a contractor). The offer should state that it is subject to satisfactory references, evidence of the right to work in the UK, and if applicable, proof of any necessary qualifications/clearances and a satisfactory medical assessment.
Referees should not be approached without the candidate's consent, and it is unlawful to ask any health-related questions or request a medical examination prior to an offer being made. If adverse medical information emerges
post offer that may affect the person's recruitment, it may be necessary to refer them to an occupational health adviser to advise further on prognosis, impact on their ability to undertake the role and any adjustments needed to assist them. Legal advice should be taken as to the form and content of any discussions with the candidate and in the worst case scenario, where an offer needs to be withdrawn.
Other circumstances may also warrant legal advice, i.e. where you do not receive, or query documentation produced by a candidate, especially around their immigration status.
Nominating the right people to manage the recruitment exercise is the safest way to represent and protect the company. Businesses are vicariously liable for the actions of their workforce, and can be roundly punished by an applicant prepared to take the company to task over careless comments made to them, or where other ammunition is sought or provided to form the basis for a claim.
A successful discrimination claim can be deeply harmful for a company's reputation, and since compensation for such complaints is uncapped, employers are always advised to adopt a prevention rather than cure mentality when it comes to all stages of the recruitment process.
Helen Crossland is a Partner in the employment team at Hamlins LLP