A considered and well thought-out approach is needed when creating a recruitment policy, rather than trying to tackle issues on an ad hoc basis (and is less likely to result in a successful tribunal claim). Employers need to identify their needs and objectives to recruit the best person for the job. However, as with most other areas of employment law, the employer is at risk if it gets the process wrong. The usual stages in the recruitment process are: However, when formulating a policy in respect of recruitment an employer must:
Advertising
According to sex discrimination and race relations legislation, it is generally unlawful to publish or cause to be published any advert that indicates, or might reasonably be understood to indicate, an intention to discriminate against applicants from a particular racial group or sex.
‘Advertisement’ is widely defined and covers public or private notices – whether published in newspapers, on the radio or television, or by distributing circulars or catalogues.
Care must be taken with the wording of an advert. Gender neutral language should be used. If a job title denotes a specific gender, then it should state that applications will be welcome from either sex.
Nothing within an advert – graphics, style or expression – should indicate a predisposition to employ a specific gender or race.
It is good practice to include an equal opportunities statement within a job advert encouraging applications from all sections of the community.
Records should be kept of the geographical scope of distribution of the advert and responses received. It is prudent to try to reach as broad an audience as possible to avoid complaints of indirect discrimination.
Sex and race are not the only areas of discrimination – disability, religion and belief, sexual orientation and marital status are all grounds on which a person may not be discriminated against during the recruitment process.
In 2006, age will also be given protection and employers will have to ensure their recruitment practices do not directly or indirectly discriminate on age grounds.
Most employers have stringent equal opportunities policies and these should be adhered to, not only in the practices undertaken during employment, but in those leading to it.
Selection and interview
Selection criteria should be carefully drawn up at the outset and consistently applied to all candidates. These should directly relate to the requirements of the job, be clear, precise and – most importantly – objective.
No assumptions should be made as to stereotypical requirements for a job – for example, just because a job involves heavy lifting, this does not mean female candidates should be excluded.
Requirements such as specific length of residence in the UK are likely to be considered discriminatory unless they are absolutely essential. You should not demand a standard of spoken or written English higher than necessary to do the job.
When considering applications from individuals who wish to work on a part-time basis, an employer should consider whether part-time employees could undertake that job. A blanket refusal to do so may adversely affect one gender and give rise to a potential complaint for indirect sex discrimination.
When considering applicants with disabilities, an employer should note the positive obligation to make reasonable adjustments to ensure that a disabled employee is not disadvantaged in the recruitment process because of their disability. This could be by, for example, ensuring that arrangements are made to facilitate attendance at interview.
The previous small business threshold for the Disability Discrimination Act 1995 – less than 15 employees – was repealed in October 2004.
There is little benefit in providing and seeking to rely upon objective criteria if the process falls down on the basis of a ‘gut feeling’. One way of ensuring prejudices do not influence a decision is to ensure more than one person carries out the interview.
An agreed set of questions should be put to all interviewees. As with the selection criteria, it is essential that the interview questions be considered in advance, as a carelessly worded question can imply prejudice.
Offer and appointment
Some employers use a system of points in an effort to remove subjectivity from the process. Although it is not absolutely necessary to offer the job to the individual with the highest points tally, selecting the individual who did not score highest may suggest discrimination should there be no satisfactory explanation.
The successful candidate should be offered the position subject to any conditions that the employer may impose, such as satisfactory references. A copy of the employer’s terms of employment and any ancillary documents sent before acceptance – receipted by the successful candidate – will also reduce the likelihood of later disputes as to what was agreed.
There is no legal obligation on an employer to ‘volunteer’ to tell applicants why they have been unsuccessful, but many employers committed to equal opportunities will provide the feedback after interviews if required. This enables employers to explain to the candidates why they were not selected and may reduce the likelihood of a claim for discrimination being made. This will also further demonstrate the objectivity and openness used in the process to that point.
Remember, unsuccessful candidates may ask to see the employer’s recruitment papers under the Data Protection Act 1998 and in discrimination questionnaires.
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This article is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.
