Most employers will be familiar with the provisions of the Equality Act 2010 (EqA 2010) which make 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. However, they may not always be aware that this prohibition also applies at the recruitment stage, an omission which puts the business at risk of possible discrimination claims.
The EqA 2010 prohibits an employer from discriminating against or victimising a candidate or for a new role. The includes discrimination in relation to:
- the arrangements made for deciding to whom to offer employment;
- the terms on which to offer employment;
- or a decision not to offer employment.
“Arrangements” is a broad term covering several stages of the recruitment process which precedes an offer being made to a person. It can cover advertisements, application forms, interview arrangements and the role and person specifications.
For instance, can you pick out the potential risks in the following job adverts?
“Barmaid wanted for local pub to start immediately” – using sex-specific terms for roles can indicate sex discrimination, if there is no objective justification for limiting the role to female candidates.
“Only highly experienced professionals need apply” – the difficulty with this statement in an advertisement is that could discriminate on grounds of age against someone who has not been able to acquire the attribute of being ‘highly experienced’ if they are relatively young. Whilst it is permissible to require a certain level of experience, it is important to be able to justify its inclusion as an essential criterion. If a role genuinely requires a candidate with a certain number of years of post-qualification experience, it is unlikely to amount to age discrimination if the reasons can be objectively set out. Alternatively, if the employer believes it is likely to require someone with a particular level of experience, but it may be possible for an exceptional candidate with less experience, a practical approach to limit the risk of age discrimination claims would be to state that applicants are likely to need a certain level of experience to meet the requirements of the role, but that those with less experience will also be considered.
Recruitment adverts which do make reference to protected characteristics are permissible in strictly limited circumstances. An employer is permitted to require that someone holds a particular protected characteristic if the employer can demonstrate that it is a requirement for the job. For example, it is lawful to recruit female care workers to look after the intimate care needs of female patients.
This is known as the “occupational requirement” defence to discrimination that would otherwise be unlawful. It can include a requirement to have (or not have) a particular protected characteristic. This exception can apply not just at the advertisement stage but at all stages of the recruitment process. For instance, we previously brought you an article regarding a requirement not to be pregnant for a particular acting role. However, the requirement must be a reasonable and proportionate way of achieving a particular aim within the nature or context of the work.
Another possible defence to discrimination is “positive action”. In general terms, if an employer reasonably thinks that people with a shared protected characteristic are disadvantaged, have different needs, or are disproportionately under-represented, they can take proportionate measures to enable or encourage those people to overcome their disadvantage or to enable or encourage their increased participation. In certain limited recruitment situations, this can enable an employer to treat a person with the characteristic more favourably than others. As with the occupational requirement, employers may apply this to any stage of the recruitment process, taking care to place limits on the extent to which discretion can be applied to the usual process. For instance, if an employer wishes to favour one candidate who possesses a protected characteristic, over another candidate who does not, the candidates must be of “equal merit” to begin with and the employer should carefully set out the rationale for selection, citing, for example, a need to recruit a more diverse workforce.
Public sector employers may have a duty to consider taking positive action under their equality duties. Although private sector employers are generally not required to take positive action, there is a positive duty on all employers to make reasonable adjustments for individuals with disabilities. This duty applies to all stages of recruitment, provided an employer is aware or ought to reasonably be aware that an individual has a disability.
Shortlisting and selection
This can be a difficult process and the discrimination pitfalls are numerous. It can be all too easy for employers to select based on their own conscious and unconscious biases. The following practical steps are a useful starting point to avoiding those biases leading to decisions being inadvertently tainted by discrimination:
- Regular and effective training of those responsible for selecting candidates;
- A carefully curated policy in place to guide recruiters through an approved process;
- A pre-agreed and objective set of selection criteria and person specification will underpin these processes;
- Shortlisting and selection should not be a solo exercise and a mixed panel should ideally be entrusted with the task;
- Scoring should be applied consistently across all applicants;
- Selection should be based on the information supplied by an applicant at the employer’s request. “Screening” candidates based on their social media profiles should be treated with caution.
These steps, if executed properly, can help to support an employer if things do go wrong and they are faced with having to defend a claim of unlawful discrimination. It can help to evidence that they took “all reasonable steps” to prevent discrimination.
This key stage of the selection process can also bring the most risk of discrimination. Many of the steps outlined above will be useful at this stage too but in addition employers should:
- Arrange interviews with an awareness of the specific candidate’s needs. For instance, considering any adjustments needed for disabled candidates;
- Avoid asking questions that are not relevant to the requirements of the job and which relate to protected characteristics. For instance, asking someone about their political beliefs to establish whether they would be a good “cultural fit” within an existing team;
- Prepare questions based on the person specification and job description;
- Ensure that there is consistency in the questions being asked of all candidates, and avoid asking candidates questions which are related to their personal characteristics.
In terms of disability and health, employers are permitted to ask a job applicant relevant questions about their disability and health before they interview them, or during an interview, in order to find out whether they can do something essential to the job.
Once an employer has made an offer of employment, they can ask unlimited questions about their disability and health, including questions about sickness records. For instance, employers can make an offer conditional on responses to these questions, as well as passing a medical examination. However, it must be reasonable to do so in the context of the nature of the job.
Employers are not permitted to reject disabled candidates simply because they are disabled, unless they have satisfied themselves that a candidate is unable to do the job before rejecting them.
A well-designed recruitment process, handled by knowledgeable staff, is the best way of avoiding the risk of unlawfully discriminating against applicants. Although there are a number of pitfalls which can present themselves as part of these processes, having an eye to the practical steps outlined above can help. Harder, but not impossible, is working around the myths which shroud and can hinder fair and equitable recruitment. Sometimes, taking positive steps and not ignoring someone’s protected characteristic entirely can be the right move.
This article is part of our recruitment mini-series. (Vetting Candidates, Offers of Employment & Right to Work Checks)