Recruitment and discrimination

The Recruitment Process

Recruiting the right staff is the key to success for any business. The recruitment process, however, can be problematic and costly if you do not address the issue of discrimination from the very beginning.

What is Discrimination?

Discrimination is treating an individual less favourably than you would treat someone else (who does not have that attribute) on the grounds of:

  • Sex
  • Race including nationality, ethnic origin or colour
  • Disability
  • Age
  • Sexual orientation
  • Gender re-assignment
  • Pregnancy and maternity
  • Religion or belief
  • Part time worker status
  • Status as a married person or civil partner
  • Membership or non-membership of a trade union

We set out below the main principles involved in the recruitment of employees. We have written this factsheet to be accessible and understandable but some of the issues may be very complicated.

Professional advice should be sought before any action is taken.

Good Recruitment Procedures

There are a number of simple but costly mistakes which employers commonly make when looking to take on new staff. Sound recruitment procedures can help to avoid mistakes, as well as ensuring that your recruitment process improves and that you take on high quality staff. It is vital that you ensure that all of the staff involved in recruitment throughout your business are aware of the company's procedures and best practice.

Where Can Things Go Wrong?

At each stage of the recruitment process you can make mistakes which could put you at risk of losing a case at an Employment Tribunal. We will now look at some ways to help avoid discrimination.

The different stages of the process include:

Defining the job or identifying the person required

This is usually the first step in the recruitment process. You will identify a need for a new member of staff either through staff changes or through the growth of your business. You will then start to compile a job description. It is always advisable to produce a clear job description which identifies both the essential activities of the job and the skills and attributes needed by candidates. There are a number of potential pitfalls with this task and it is important that you do not set criteria which could be viewed as being discriminatory. It should be possible to see from the job description whether a disabled candidate would be able to deal with those essential activities. You should avoid gender references such as 'he' or 'she' and only refer to qualifications and/or experience which are clearly required by the job. The danger is that any such attributes which cannot be shown to be essential to the job could be inferred as being included in order to deter women, candidates from ethnic minorities or those with a disability.

Some examples of what to avoid might include:

  • A requirement to work certain days of the week which could be regarded as discrimination on the grounds of religion.
  • Requiring applicants to move (a mobility clause) could be discriminatory on the basis that a person with family commitments would have difficultly with this clause and the majority of people with primary responsibility for childcare are women.

Attracting candidates by advertising

The next step in the recruitment process is to advertise. The same principles apply to the advert as they do to the job description. Care needs to be taken when designing and writing advertisements to ensure that there is no discriminatory effect.

In an advertisement you must ensure that any wording used does not imply that a particular category of applicants (such as men or women) will be favoured candidates, and be careful with words such as 'energetic' (unless this is a genuine requirement of the role) which might deter candidates with disabilities or older candidates. The process for seeking candidates must also be non-discriminatory and not restricted in a way which could be seen to be discriminatory. An obvious error would be to put an advertisement in a place where it would only be seen by, for example, men (such as an all male golf club).

Since the introduction of the Employment Equality (Age) Regulations 2006 it is vital that employers avoid discriminating on the grounds of age. These Regulations have now been replaced by the Equality Act 2010, but the principle remains the same. Most employers will consider older workers when thinking about this, but it is also important to consider younger workers too as age discrimination applies to people of all ages. For example, stating that a person must have a certain amount of experience may prevent people of a certain age from applying. It may be that the person does not have the experience in years but does have the necessary skills for the position. Employers should therefore consider carefully if it is actually the experience that is needed or more specifically the skills.

Application forms

Candidates are usually required to complete an application form and again the application form should be designed with discrimination legislation in mind. Requiring a candidate to complete information, for example, regarding their age or marital status has in the past been almost standard practice. It is important that existing paperwork is reviewed to ensure that it reflects the current approach to recruitment and does not have any unintended discriminatory effect.

You should also consider whether any changes might be required to the application form to assist a disabled candidate and you should be willing to consider alternative application methods such as enabling the company website to be used by visually impaired candidates if this would assist a disabled candidate.

How you assess the candidates you see

Selection methods must be chosen which will enable the appropriate skills and attributes to be assessed but should avoid anything which would in effect be discriminatory. An example could be written tests involving English comprehension for a basic cleaning job where the skills assessed by the test would be irrelevant. Where tests are used, all candidates need to be given the same tests to avoid any suggestion of discrimination.

You should also seek to avoid discriminatory questions at interview (e.g. when do you expect to have a family?) and try to ensure that all candidates are asked the same questions.

Prior to the interview/assessment you should enquire as to whether a candidate requires any reasonable adjustments to be made to facilitate the interview taking place. For example, a candidate might require a particular type of computer keyboard to demonstrate their computer skills.

You should also look critically at the physical layout of the workplace, and consider modifying the premises in order to make it easier for candidates and workers with disabilities (e.g. by installing wheelchair ramps).

It is essential that proper records are kept for an appropriate period of time regarding applications, reasons for rejection and the performance in any assessments and at interviews, and that these complement the job description and the skill requirements for the job. Obviously such processes help with selection anyway but these records may prove essential if anything goes wrong.

  • The Information Commissioner's office advises that:
  • You should assess who in your organisation is responsible for looking after the records
  • You should ensure that no recruitment record is held beyond the statutory period in which a claim arising from the recruitment process could be brought (unless there is a very good business reason for maintaining the records for longer)

If you are going to retain information beyond this period, consider making any recruitment information anonymous

Making the actual selection decision

When reaching a decision as to which candidate to select, it is again important that all of the factors referred to above are taken into consideration and that any discriminatory effect is avoided. If you provide candidates with feedback, then this should be consistent with the decision making process. Records should be kept of any decision making process and any feedback offered.  

The terms of employment that you offer

It is essential that when setting out the terms of employment that you are willing to offer, these do not adversely impact on a person in a discriminatory way. For example, offering a part time person less holiday or a lesser level of health cover than full time staff could be deemed as discrimination under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and could also be regarded as sex discrimination as the majority of part time workers are female.

You can see that the recruitment process is potentially very problematic but handled carefully and with the right advice you can attract the right sort of people to make your business a success.

How Can We Help?

Our experienced employment law department can help your business in all areas relating to human resources, from advising on compliance issues to tribunal representation. We would be more than happy to provide you with further assistance or any additional information required.

For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.

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