Employment law clinic No 11 Discrimination

THE CHALLENGE: After several weeks in her new job, the HR manager of a
manufacturing company realises her employer’s recruitment processes are
haphazard. She is horrified when she is asked to find a secretary who is
‘young, blonde and not planning to start a family’. Linda Farrell and Charlotte
Hughes Scholes of the Employment Rights and Benefits Group at Bristows, weigh
up the issues.

The objective of a responsible employer’s recruitment policy and selection
process should be to find the most suitable person to fill a particular job in
terms of experience, skills, aptitude and qualifications. Employers who deny
equality of opportunity to applicants by relying on selection criteria such as
a person’s sex, race, ethnic origin, marital status, lack of family ties or
disability may face tribunal claims under anti-discrimination legislation.
There is no ceiling on the compensation that tribunals may award in such
claims.

It is generally unlawful to place an advertisement that indicates an
intention to discriminate on grounds of sex or race. However, there is an
exception where being a member of a particular sex or racial group is a
‘genuine occupational qualification’. It is lawful to advertise for a woman to
work in ladies’ changing rooms or for Thai waiters to work in a Thai
restaurant, for instance.

The placing of an advertisement which suggests an intention to discriminate
against disabled people is not unlawful in itself, but employers will be forced
to rebut the presumption that they did discriminate should an unsuccessful
disabled candidate subsequently bring a claim.

Age discrimination is not currently unlawful in the UK, although legislation
will be introduced by 2006 to comply with the EU General Framework Directive.
The recent code of practice emphasises that employers should recruit on the
basis of skills and abilities needed to do the job.

Care should be taken in fixing selection criteria. Imposing a requirement
that applicants must be under 30 and have achieved a certain level of
qualification, for example, may discriminate against women as they are more
likely to have taken career breaks to raise a family. Criteria relating to standards
of English language (or the colour of their hair!) may discriminate against
individuals of different ethnic origins.

Discrimination can also occur during the interview process. Questions asked
to only female applicants about whether they are pregnant, intend to start a
family or about their childcare arrangements can give rise to tribunal claims
where the employer recruits a single and less qualified male applicant.

The refusal of a job to a woman on grounds of pregnancy, or non-availability
for work for that reason, constitutes direct discrimination.

Under the Data Protection Act 1998, individuals are entitled to request
copies of information held about them, including notes taken at interview.
Scribbled comments about a woman’s marital status, or whether an applicant
would ‘fit’ into the organisation and work culture, could assist an
unsuccessful job applicant in pursuing a discrimination claim.

Employers should have in place an effective equal opportunities policy that
makes it clear there will be no unfavourable treatment of applicants or
employees on any potentially discriminatory grounds.

A job specification should be prepared setting out the personal skills
necessary for the job. Employers should also decide whether the job could be
done by part-timers, job-sharers or remotely by home workers.

Application forms should be designed to elicit information only relevant to
the job and which is required in order to eliminate unsuitable candidates.

Monitoring information is best collected on a document that is separate or
detachable from the main body of the application form. This allows the form to
be kept secret from anyone involved in the selection process (to avoid any
suggestion of bias).

Employers should ask applicants whether they require any particular
arrangements for attending an interview or taking a test – wheelchair access or
good lighting conditions for the visually impaired, for example.

Interviewers should avoid asking discriminatory questions, regarding
pregnancy, childcare arrangements or marital status. If there are specific job
requirements that might cause problems (the need to work overtime), ensure all
applicants are asked the same questions.

Employers should avoid making assumptions about individuals regarding their
ability to fit into a multicultural environment or to work late, for instance.

Ability to do the job should be elicited by neutral questioning of all
applicants regarding their previous experience and willingness to undertake
additional training.

By Linda Farrell a partner and Charlotte Hughes Scholes isan associate at
Bristows Employment Group

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