Law in Practice – what are employers entitled to know about applicants?

In Cheltenham Borough Council v Lairdthe High Court rejected the council’s claim that a former senior employee had made fraudulent and negligent misrepresentations that induced it to enter into an employment contract with her after she failed to mention her history of stress and depression in a pre-employment medical questionnaire.

Cheltenham offered Laird the post of managing director in early 2002 on condition that she obtained medical clearance. She completed a medical questionnaire but failed to mention her history of stress and depression, and was certified as medically fit. Laird started work but, with time, became involved in a number of internal disputes and her mental health problems recurred.

The High Court found that the answers Mrs Laird gave were not false, and were therefore not misrepresentations.

This case follows the recent press reports that the government has sent out 2,000 bogus job applications as part of a covert operation to expose racist employers.

So what are employers entitled to know about job applicants and what are the key Do’s and Don’ts for employers at the recruitment stage to avoid allegations of discrimination?

Collect anonymised data

Employers are entitled, and indeed encouraged, to monitor the composition of applicants, for example with reference to their sex, race, and age. However, candidates should only be asked to provide this information in an anonymised monitoring form which is kept separate from the application form and the recruitment process itself.

The monitoring form should never be shown to the short-listing or interview panels. Information about an applicant’s racial or ethnic origin, health, religion or similar beliefs and sexual life is sensitive personal data under the Data Protection Act 1998, but provided it is anonymised, it will cease to be such data because the individual will not be identified.

Also, it will rarely be appropriate to ask for medical information at the application stage. It is usually only after an offer has been made that medical information becomes relevant.

Requesting information about an applicant’s health may be appropriate depending on the nature and seniority of the role. Employers must be careful not to discriminate on the grounds of an applicant’s disability or age, so any questioning about an applicant’s medical history must be linked either to a general policy of the employer or the specific needs of the role in question.

In appropriate cases, an employer may make an offer of employment conditional on a satisfactory medical examination or questionnaire being obtained. A medical examination may give rise to data protection issues as any medical information held by the employer will constitute “sensitive personal data”. The candidate will therefore need to give their consent to a medical report being requested from their doctor.

Careful questions

Employers should also draft any pre-employment medical questionnaires carefully. In the Cheltenham Borough Council v Laird case, the council lost its claim largely due to the poor drafting of its medical questionnaire.

Questions should be unambiguous and it may assist to include examples and explanatory notes. It is also advisable to include a general “sweep up” question requesting disclosure from the applicant of anything else in their medical history which might affect the employer’s decision to offer them employment.

In some industries, an employer may ask candidates to take an alcohol or drugs test before starting work. Again, this should be either in accordance with the employer’s general policy or directly linked to the requirements of a particular role. The request for the test should be justifiable, necessary and proportionate.

For other jobs it may be appropriate to carry out pre-employment credit checks. Such checks will be lawful where they are proportionate to the role.

As for criminal records, certain occupations require that a Criminal Records Bureau check be carried ou, such as where the individual will be working with children or vulnerable adults. But the Rehabilitation of Offenders Act 1974 provides that applicants are not obliged to disclose details of spent criminal convictions to an employer. However there are exceptions to this for certain professions such as solicitors, chartered accountants and those subject to FSA regulation.

Finally an employer is entitled to check references and other facts, such as academic qualifications, before making an offer or to make receipt of proof of these a condition of the offer.

The Key Dos and Don’ts

  • Use a standard application form so that all applicants are treated equally. It should not ask for unnecessary information such as the candidate’s age, marital status or ethnic background.
  • Job descriptions and advertisements should be carefully drafted so as not to be discriminatory: for example, avoid using words like “lively” or “mature” which have age connotations, and use gender neutral language, eg “salesperson” and not “salesman”.
  • Ensure that employees who are involved in recruitment and selection are trained in good recruitment practice, particularly in relation to equal opportunities.
  • Short-listing for interview should be done objectively and by reference to the applicants’ skills and qualifications only.
  • It is advisable to use an interview panel wherever possible to ensure objectivity and consistency. If a panel is being used, it should meet in advance to agree the questions to be put to applicants.
  • The questions asked of each candidate should be consistent and generally asked in the same order. Social conversation at should be kept to a minimum to avoid the conversation veering towards inappropriate questions about the applicant’s private life and potential allegations of discrimination as a result of these.
  • Interviewers should only ask questions relating to the candidate’s ability to do the job. For example, asking a female candidate about her plans to have a family, or an older candidate about their energy levels is potentially discriminatory and could lead to a claim.
  • It is crucial to keep full written records at all stages of the recruitment process for all candidates, recording the reasons for the decisions taken. This will allow employers to give feedback to unsuccessful applicants, if requested, and will be very important documentation in the event of any allegation of discrimination being made.

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