The Recruitment Process – Say No to Discrimination!
20th August 2019

 “We want people who fit not only the way we do things but who we are.”

Findings of an academic study by Professor Lauren Rivera, Northwestern University

As an entrepreneur, building your business will probably mean employing staff, whether as workers, employees or contractors.

There are both perks and pitfalls to becoming an employer and crucially, one of the pitfalls is the “unintended discrimination trap,” particularly in recruitment. It is unlawful to discriminate when deciding whether to offer the job, the terms on which the job is offered or by not offering the job, in relation to nine “protected characteristics”:  These are race, age, disability, marriage and civil partnership, sexual orientation, gender reassignment, religion and belief, pregnancy and maternity and sex.

It gets even more complicated – there are different ‘types’ of discrimination:

  • ·  Direct Discrimination;
  • ·  Indirect Discrimination;
  • ·  Victimisation;
  • ·  Harassment; and
  • ·  Discrimination arising out of disability and failure to make reasonable adjustments (for disability discrimination cases only)

Describing each type of discrimination is too complex for this article but discrimination must be avoided at every stage of the recruitment process – from preparing a job description, to advertising the vacancy, to interviewing, to making an offer of employment.

How do I avoid discriminating during recruitment?

1. Training

A claim for discrimination by a job applicant may be brought against the employer and/or any employees and recruitment agents who were responsible for the discrimination. It is therefore vital that you provide or ensure the provision of training for all those involved in the recruitment process so they are aware of discriminatory behaviours and questions.

It’s important that all staff involved in the selection process received training on your equality policy and its application to recruitment. Training should be given in relation to all key stages of recruitment:  the initial selection; interview questions, interviewing techniques, and decision-making.  This will help those recruiting recognise when they are making stereotyped assumptions about people and avoid questions that are not relevant to the requirements of the job. Training should be ongoing, regularly reviewed and kept up to date.

Example:

‘We must have a full-time employee’ – This criteria is potentially indirectly discriminatory on the grounds of sex as it may disadvantage women who have childcare duties meaning they cannot work full time.

2. Paper trail

Make sure you keep written evidence of the entire recruitment process; a failure to keep records will count against you in a legal challenge. This was seen in a prominent racial discrimination case where a witness in a tribunal came across as essentially truthful yet documentary evidence and  inconsistencies throughout the interview process showed that he was less reliable than he seemed.

What if I want to hire a particular type of candidate?

In limited circumstances you may be able to discriminate, if it falls within one of the legal exceptions such as taking positive action to employ persons who share a protected characteristic who suffer a disadvantage connected to the characteristic, or by demonstrating that a certain candidate is needed as an occupational requirement. However, these are very limited exceptions, and you should take advice before you rely on them.

These are just a few tips on how to avoid discrimination in recruitment, but in the event that an issue arises, you may have a defence if you can show that you took “all reasonable steps” to prevent the discriminatory act. Following the tips will help to avoid discrimination claims; should a claim still present itself, it will strengthen your legal defence.

About the author

Mark
Emery
Freeths
Mark specialises in advising SMEs and organisations (public, charity, and educational institutes) on HR issues and strategy.

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Wednesday 11th September 2019
Oxford Brookes University,
Headington Campus