Employers would do well to read the EOC Code of Practice before embarking on alternative methods of recruitment. When the man who sits at the top of the UK’s legal system loses an employment tribunal, HR managers can afford a wry smile. They should also, though, make sure that they do not make his mistakes.
The Equal Opportunities Commission (EOC) announced recently that it will be supporting solicitor Jane Coker in her ongoing legal battle with Lord Irvine, the Lord Chancellor when the case comes before the Employment Appeal Tribunal this month.
Jane Coker won the first round of her claim of indirect sex discrimination against the Lord Chancellor at the employment tribunal in May 1999. She claimed that by appointing a male friend, Garry Hart, as his Special Adviser without advertising the vacancy, the Lord Chancellor had imposed a requirement that the successful applicant must be someone personally known to him. The tribunal agreed with Coker that the criteria had the effect of restricting the number of women who could apply, as the group of people the Chancellor knew included more men than woman. Coker was successful in her claim irrespective of the fact that she had never applied for the job.
While many may be enjoying the Lord Chancellor’s discomfort, the case is a timely reminder that discrimination can occur at any stage of the recruitment process, even where the would-be candidate has not had the opportunity to apply for the job.
As part of the recruitment process, the employer may choose to advertise the post, use a recruitment agency or to use informal methods, for example word of mouth. However, the Coker case reminds us that it is unlawful to use recruitment methods that would have the effect (intentional or not) of limiting the number of applications from one sex.
Employers should be aware that where recruitment is made through contacts or recommendations of the existing workforce the scope for discrimination is greater. If the workforce is dominated by one particular sex, and when vacancies arise the employer suggests that employees should enquire whether friends would be interested, there is the risk that this will reduce the number of applicants from the opposite sex.
Advertising the post therefore carries less risk of discriminating, although care should be taken to avoid placing adverts in publications or places that are generally restricted to one sex.
The EOC Code of Practice on Sex Discrimination provides guidance on measures to eliminate discrimination in recruitment. The code, although not legally binding, carries considerable weight with the tribunals and employers should comply with its recommendations as best practice.
Although Coker’s case relates to an appointment to a public post, the principles apply equally to recruitment in the private sector. It is also worth noting that as Julie Mellor, Chair of the EOC, has pointed out recently, if candidates are recruited from a wide pool of people, in addition to eliminating sex discrimination it will enable employers to recruit the best people for the job.
· Read the EOC Code of Practice on Sex Discrimination as it will prove invaluable in resisting claims of discrimination.
· Avoid informal recruitment methods such as word of mouth.
· Pay attention to the wording, pictures or graphics of job adverts which could give the impression that the advert is aimed at one sex.
· Ensure that the adverts are not placed mainly in publications that are generally read by one sex.
By Amanda Smith, a solicitor in the employment team at Wragge & Co