The recruitment process (which can start even before advertising the role right up to the date on which an individual commences work) can be a minefield for employers. My colleague Sophia Coles has recently written a blog about online searches during recruitment and so I won’t cover that ground again here (albeit I would recommend you read that blog in conjunction with this one!). I am going to focus on a few key recruitment pitfalls to be avoided and finish on a positive note with some top tips. Given one of the key risks in recruitment is discrimination, I will focus on that in this blog and will kick off with a quick reminder of the law.
The Equality Act 2010 (EqA 2010) makes discrimination and harassment unlawful in relation to nine "protected characteristics": age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Sections 39 and 40 of the EqA 2010 cover discrimination, victimisation and harassment in recruitment and, in summary, set out that employers must not discriminate or victimise a person:
- In the arrangements the employer makes for deciding to whom to offer employment.
- As to the terms on which the employer offers the person employment.
- By not offering the person employment.
In addition, the employer must not harass the person who has applied to the employer for employment.
The meaning of “arrangements” refers to the policies, criteria and practices used in the recruitment process, including the decision-making process, and includes such things as advertisements for jobs, the application process and the interview stage.
What does this mean in practice?
Whilst nothing in the EqA 2010 prevents an employer from hiring the best person for the job, it is unlawful for an employer to discriminate in the process. For example:
- Treating a job applicant worse than another applicant because of a protected characteristic (this would be direct discrimination).
- Doing something (and the “doing something” can include making a decision or applying a particular rule or practice) which has (or would have) a worse impact on a job applicant and on other people who share a particular protected characteristic than on people who do not have that characteristic. Unless the employer can objectively justify this, then such actions could be indirect discrimination. For example, a job involves substantial travel to see clients and the successful applicant will need to be able to drive. An employer will need to show that a requirement to be able to drive is objectively justified, or they may be discriminating unlawfully against people who cannot drive because of their disability.
Some areas where we frequently see issues arise include: content of job adverts (in particular, what is said about the skills, qualities and experience needed for a role), shortlisting process, interviews (in particular, inappropriate questions being asked of applicants) or incorrect use of positive action. It is worth noting that claims can be brought against not only the employer and / or its employees but also recruitment agents or headhunters.
Helpfully, the Equality and Human Rights Commission’s guidance: What Equality Law Means for You as an Employer: When You Recruit Someone to Work For You and Employment: Statutory Code of Practice (see chapter 16 in particular), provides detailed guidance, including a number of examples of unlawful discrimination in the recruitment process.
Top tips to help avoid unlawful discrimination during the recruitment process
Given the potential risk of discrimination arising in the recruitment process, here are some suggestions for safer recruitment practices:
- Equality policies and practices: are drivers of good recruitment practice and send a positive message to those thinking about applying. It can also set the scene for organisations seeking to encourage a diverse workforce as well as help avoid discrimination. Which leads me neatly to the next point.
- Training: make sure employees who are involved in the recruitment process have had training so that they are alive to the issue of discrimination, and they know to avoid the pitfalls. This will help employers to have a defence in cases where an employee has slipped up and potentially even acted contrary to what they have been instructed to do. Keep a paper trail of the training. Likewise, when using recruitment consultants / headhunters, keep a paper trail of the instructions given to them.
- AI: there has been much said about the risk of AI creating or replicating existing biases in the recruitment process (see our blog AI in the workplace: helpful or harmful?). If AI might be used as part of the recruitment process, then training should cover AI and how to use the data without risk of discrimination.
- Use positive action to help alleviate disadvantage: though care must be taken to avoid straying into unlawful positive discrimination. My colleagues have covered this in a recent blog and so I refer you to that!
- Use a job description and person specification: use of a job description and person specification (written in plain language without overstating skills, qualities and experience and obviously avoiding discriminatory criteria) will help the employer to focus on what the job involves and the skills, experience and qualifications needed, meaning there is less chance of being distracted by irrelevant factors, such as someone’s protected characteristics.
- Reasonable adjustments: be prepared to make reasonable adjustments in the recruitment process (for example, an employer might need to provide information to an applicant in an accessible format). It is good practice to include on an application form: “Please contact us if you are disabled and need any adjustments for the interview”.
- Questions best avoided: except in certain specific circumstances (for example, where reasonable adjustments are needed for an assessment such as an interview), employers should not ask any job applicant about their disability or their health until the applicant has been offered a job. It is worth noting that questions about previous sickness absence are questions that relate to disability or health and so should be avoided. Also, employers should avoid asking about marital status or childcare arrangements. An employer can avoid the risk of discrimination by having a separate section of the application form which asks about personal information, with an explanation as to why this information is needed (for example, for monitoring purposes). This information should be withheld from those short-listing or interviewing applicants.
- Job adverts: avoid wording that suggests the employer is seeking, or seeking to exclude, applicants with a certain protected characteristic (for example, advertising for a “salesman” or someone who is “youthful”). Employers can only advertise for someone with a particular protected characteristic in limited circumstances (for example, where there is an “occupational requirement” for a person with a certain protected characteristic - for example, where someone of a particular sex is required for reasons of privacy and decency or where personal services are being provided).
- Reach a wide pool of candidates: recruiting through recommendations made by existing staff, rather than through advertising, can leave employers open to a risk of discrimination claims. It is important to advertise widely so a wider and more diverse pool of applicants can be reached.
Being responsible recruiters not only limits risks of legal claims but also helps to increase diversity in the workplace.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2023