A key risk from an employment law perspective in relation to recruitment and the selection of candidates is being faced with a discrimination claim.
This article considers some best practices for employers and highlights some potential pitfalls.
Equality Act 2010
The risk of an employer discriminating against job applicants exists throughout each stage of the recruitment process, and as such it is imperative that employers are aware of their legal obligations.
The Equality Act 2010 prohibits employers from discriminating against employees and job applicants on the basis of nine “protected characteristics”, being 1) age 2) disability 3) race 4) gender reassignment 5) marriage and civil partnership 6) pregnancy and maternity 7) religion or belief 8) sex and 9) sexual orientation.
In the specific context of recruitment the legislation includes some narrow exceptions. An employer may have a “defence” to certain forms of discrimination where it can demonstrate that having a particular protected characteristic is a genuine “occupational requirement” for the position. Applying this exception will be atypical and will need to be approached with caution. An example of where having a particular protected characteristic is a genuine “occupational requirement”, is the Catholic Church requiring that an applicant applying for the role of a priest is Catholic.
Stages of Recruitment
1. Before advertising a job role
- Recruitment policy: It is advisable for employers to have in place a recruitment policy, setting out a recruitment process which is compliant with discrimination laws. Such a policy is likely to assist employers in maintaining a consistent approach to recruiting, limit the scope for discriminatory practices and be good evidence that the employer has taken reasonable steps to avoid discrimination.
- Training: Employers should provide specific training to members of staff involved in the recruitment process on the firm’s equality obligations. This is likely to assist employers in ensuring compliance and also defending any discrimination claims should they arise.
2. Advertising a job and candidate selection
- Internal and external candidates: To ensure that the best candidate for a job is chosen it may be sensible to advertise a job role both internally and externally. When advertising both internally and externally employers should also ensure that the same selection procedures and criteria are applied to both sets of candidates.
- Scope of advertising: When advertising vacancies employers should look to reach a broad spectrum of potential applicants by using a mix of advertising channels.
- Job specification
Care should be taken when drafting a job specification. A job specification should set out genuine requirements for a role and avoid using wording which could be deemed discriminatory. For example, using terms such as ‘dynamic and youthful’ prima facie discriminate against older applicants.
- Social media: Employers who place paid adverts for job roles on social media should usually avoid targeting specific audiences i.e. to a specific gender and/or age group. Unless those characteristics are an “occupational requirement” of the role such practices are inherently discriminatory.
In addition, employers should be aware of the risks of searching for applicants on social media, given that information relating to a protected characteristic may well be identified on an applicant’s profile. If such information is subsequently used to make recruitment decisions, this may well amount to discrimination.
3. Interview process
- Making “reasonable adjustments”: Employers should not ask a job applicant about their health prior to offering a job. One exception to this is where the purpose of such questions is to find out if the employer needs to make adjustments to the recruitment process to accommodate the applicant due to a disability.
- Selection criteria: The interviewers conducting the interview should have a clear understanding of the selection criteria for the role. This should include an understanding of what skills and experience are needed and are relevant to the job.
It is advisable, where possible, for interviews to be conducted by more than one person. This reduces the risk that a decision has been made (or argued to have been made) based on one person’s view of the applicant. This should remain the case even when an interview takes place virtually with recording facilities.
- Interview questions: Interviewers should avoid asking questions which relate to protected characteristics, unless they concern an occupational requirement and are strictly relevant to the employment. Although they are often used to build rapport in ordinary social situations, questions such as “That’s an interesting surname, where is that from?” or “How many children do you have?” should be avoided in the recruitment context, because they may lead to a discussions about a protected characteristic or be misinterpreted.
To assist with asking appropriate and lawful questions, it is recommended that prior to the interview a set of questions is prepared for each applicant. The interviewers should then make notes for each question, and if possible implement an objective scoring system to assess the applicant’s response. This will introduce a degree of standardisation and objectivity, and enable the interviewers to easily compare their notes/ scores, limiting scope for bias and discrimination.
- Can an employer ask the candidate about their previous salary/ies?: English employment law – unlike many jurisdictions - does not ban employers from asking a job applicant about their salary history.
This may well however be a moving area of law, as the campaign for a ‘salary history ban’ appears to be gaining momentum, with those in favour of the ban arguing that requiring a candidate to disclose their previous salary perpetuates pay inequalities and can lead to discrimination.
There is no legal requirement for an employer to provide a reference for an ex-employee. However, if an employer does provide a reference they are under a duty to the employee and the recipient of the reference to only provide information which is true, accurate and fair, and does not give a misleading impression overall.
An employer may provide a ‘bad’ reference, suggesting that an applicant is not suitable for a role, if the reference is ‘fair and accurate’. However, this may be asking for trouble since it is likely to cause bad feeling from the ex-employee. A bad reference may cause the ex-employee to speak negatively about the employer in the industry, or bring nuisance claims or submit a data subject access request. In most situations therefore, even where the ex-employee was particularly good or bad in their previous role, it is recommended that employers limit any reference to the ex-employees dates of employment and their previous job role.
5. Making an offer
It is often the case that employers wish to offer a job to an applicant on the condition that satisfactory references are obtained. In these circumstances, employers should make sure that the offer is made ‘conditional’ upon receipt of satisfactory references. Otherwise the employer will be in breach of contract should they then seek to withdraw the offer on receiving unsatisfactory references.
Risks in the recruitment process
A job applicant can file a claim for discrimination in the Employment Tribunal against a prospective employer at any point during the recruitment process. It is important to highlight that the burden of proof in Equality Act claims is reversed if the applicant proves, on the balance of probabilities, facts from which, in the absence of any other explanation, the Employment Tribunal could infer an unlawful act of discrimination.
Furthermore under UK law, an employee who carries out an act of discrimination against an applicant during the course of the recruitment process can be personally liable and may be sued by the victim in question. This highlights the importance of putting in place staff training and a recruitment policy, as set out above.
In addition to purely legal risks there may be other ramifications of the discovery of discriminatory practices in recruitment, such as additional HR disputes and grievances from other employees/ applicants, adverse publicity and reputational harm.
Data Protection considerations
For UK GDPR purposes, employers are required to inform applicants of how the information they have provided throughout the recruitment process will be used and stored. This is particularly pertinent in relation to the retention of recorded zoom interviews, which have been commonplace during the pandemic.
Criminal Record Check
A job applicant is not required to disclose to an employer any criminal convictions which have been spent. Details of when a sentence becomes spent can be found on the government website.
Right to work in the UK
Employers must comply with their legal obligations under immigration legislation. An employer has an obligation to carry out "right to work" checks on all prospective employees. An employer is potentially able to reject a prospective employee because they do not have the right to work in the UK.
Expert legal advice
For further advice on the law surrounding recruitment or any other Employment Law issue, please contact a member of our Employment Law team.