Most employers realise that the recruitment process can be fraught with
legal difficulties and have well established procedures and routines to best
protect themselves. But it is worth considering instituting a checklist of the
relevant issues in each organisation to ensure consistency and to emphasise the
potential legal gravity of the situation.
Potential legal issues
The moment a recruitment process begins, employers should be aware that it
is possible to become liable for discrimination claims. Clearly, to refuse to
interview or reject applicants directly because of their sex or race – and, in
Northern Ireland, their religion – could result in a legal claim being made.
Similarly, to reject an applicant because of a disability without meeting the
justification defence could result in a claim.
More subtly, however, the conditions in which the recruitment process are
carried out could give rise to such claims. It is well established, for
example, that imposing a requirement or condition which is not necessarily
strictly relevant to the job could result in a discrimination claim being made
by someone subjected to a detriment on that ground.
The physical arrangements made for the interview need to be taken into
account, particularly in relation to disability issues. Indeed, it is worth
asking a standard question of all interviewees as to whether any special
arrangements should be considered to assist the interviewee.
Most employers are also aware that the questions asked at interview can have
discriminatory ramifications. It is not advisable to ask the interviewee any
question from which an inference can be drawn that discrimination exists. It is
unwise to enquire specifically into childcare arrangements or an interviewee’s
racial background, for example.
It is also good practice to ensure that the same or very similar questions
are asked of all interviewees so that a proper assessment of their comparative
answers can be obtained. This puts all interviewees on a level playing field.
Employers need to be aware of their duties in relation to the immigration
situation of any potential recruit. It is a criminal offence to recruit an
individual who does not have the proper immigration status, although the
statutory defence provided for in the relevant legislation is not onerous.
Again, a standard non-specific question can be asked of all applicants, and
a standard request for the relevant documentation can be given to any potential
It is also good practice to make an offer of employment subject to receipt
of references satisfactory to the new employer and to the satisfactory
provision by the potential recruit of medical information, usually set out in
the form of a questionnaire by the employer. Employers should be aware,
however, of their duties in relation to the Disability Discrimination Act when
seeking medical information from potential recruits.
Although most employers like to regard the recruitment process as being a
difficult and time-consuming job, it is also important to look at the potential
legal ramifications of entering into such a process without being fully aware
of the potential liability.