Real Employment Law Advice

Discrimination during the Recruitment Process

As you will be aware, employees are able to pursue claims for discrimination, under the Equality Act 2010, if they consider they have been discriminated against due to a protected characteristic. The protected characteristics covered by the Equality Act are:

  • Age;
  • Race;
  • Gender Reassignment;
  • Marriage & Civil Partnership;
  • Pregnancy & Maternity;
  • Religion or Belief;
  • Sex; or
  • Sexual Orientation.

However, it is also important to ensure that individuals who apply for roles within your organisation are not treated unfairly due to a protected characteristic, as the Equality Act 2010 also provides protection to these individuals.

So, what steps need to be taken and how can you avoid such claims:

Wording of the Job Advert

It is often easy to put together a job advert based on the business needs. However, you need to be careful, as it is possible the wording used could be deemed indirect discriminatory (meaning it adversely impacts a specific group of people), without this being intended.

For instance, many adverts state a candidate needs a specific amount of experience, within the same or similar type of role. The issue with this is this is it could be seen to be indirectly discriminatory against younger people, as they may not have had the opportunity to obtain the same number of years of experience required to apply for the role. In this situation, you could add that candidates with the required experience are encouraged to apply, even if they do not have the specified years of experience.

The Recruitment Process

It is best to ensure that the managers tasked with handling the recruitment process, are aware of your Equality & Diversity policy and that training has been provided to them on how to deal with the recruitment process fairly and reasonably.

Whilst it is acceptable to ask a candidate if they require any reasonable adjustments to be made, during the interview process, a candidate should not be asked certain questions, including about their age or if they have or are planning to have children.

Questions of this nature could be considered discriminatory and could lead to the candidate believing they have not been successful because they are too young or old, or because they have children.

You can ask candidates to complete an equality & diversity form, as part of the process. However, the forms should be able to be completed anonymously and no one involved in the recruitment process should have access to the completed forms.

There are certain exceptions, where you are able to ask candidates questions which relate to a protected characteristic. However, if you are going to ask questions of this nature, you must ensure:

  1. The question is crucial for the job, and is an occupational requirement; or
  2. It helps a disadvantaged or underrepresented group within your organisation.

If you consider you may need to ask specific questions relating to a protected characteristic, I recommend you seek legal advice first.

Overall, it is best to document your decision-making process and the reasons you have hired a specific candidate over another, this is to ensure you have covered the business, if a candidate does try to claim they were discriminated against during the recruitment process.

Further, if a candidate does raise a concern, I would advise you discuss their issue with them, and attempt to resolve matters before the matter is escalated.

Finally, ensure you have a Equality & Diversity policy in place which is accessible to employees, and best practice would be to make this available to prospective employees as part of the recruitment process or placing a copy on your website.

If you have any questions or require any advice, please do not hesitate to contact us. The team and I will be happy to assist and can be contacted on 01983 897003.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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