This line manager briefing looks at the law and good practice on recruitment interviewing, including how to avoid bias and discriminatory questions.
This line manager briefing includes information on:
- Employers’ potential liability for discrimination in recruitment
- The law
- Good practice in recruitment interviewing
- Effective questioning techniques
- Avoiding discriminatory questions
- Interviewing a disabled candidate
- Avoiding age discrimination
- Questions about opting out of pensions auto-enrolment
- Avoiding discriminatory questions
- Interview notes
- Further general guidelines
- Test yourself
1. Employers’ potential liability for discrimination in recruitment
Anti-discrimination law applies throughout the entire process of recruitment, including selection interviewing.
Employers are liable in law for any discriminatory actions perpetrated by their staff in the course of their employment. This means that if a manager who is conducting recruitment interviews does or says anything that could be construed as discriminatory, the employer will be potentially liable to pay compensation to the victim if a successful complaint is subsequently made to an employment tribunal.
A job applicant who believes that he or she has experienced discriminatory treatment during the process of recruitment has three calendar months from the date of the discriminatory treatment to lodge a claim with a tribunal.
There is no limit on the amount of compensation that can be awarded by tribunals in discrimination claims.
|Did you know that…|
… in 2011 the average discrimination compensation award was £38,848?
Source: Equal Opportunities Review, No.227
2. The law
Job applicants enjoy protection against discrimination because of:
- transgender status (ie where a job applicant has had a sex change or is in the process of changing sex);
- pregnancy and maternity;
- marriage or civil partnership;
- race, colour, nationality, ethnic origins and national origins;
- religion or belief;
- sexual orientation;
- age; and
Rejection for employment is also unlawful if it is on the grounds of a candidate’s past or present trade union membership or, with some exceptions, on the basis of a “spent” criminal conviction.
The general principle contained in the UK’s anti-discrimination legislation is that all job applicants must be treated equally, irrespective of sex, race, etc. The structure of the law on disability is slightly different in that the employer may choose, if it wishes, to treat a disabled candidate more favourably than other candidates (and in some circumstances, must treat a disabled candidate more favourably than other candidates).
Discrimination can be direct, ie targeted at an individual because he or she possesses a protected characteristic, because he or she associates with someone who possesses a protected characteristic (eg if an applicant has a disabled son), or because the employer mistakenly believes that he or she possesses a protected characteristic.
Discrimination can also be indirect. Indirect discrimination occurs where the employer unjustifiably imposes a criterion as part of the recruitment process, which, although applied to all job applicants, puts certain people at a disadvantage. An example could be a requirement for job applicants to speak or write English to a standard of fluency. This criterion would discriminate indirectly against people who come from a country in which English is not the first language. Such a requirement would be racially discriminatory and unlawful unless the employer could show that it was appropriate and necessary for the effective performance of the job, and not excessive in relation to the needs of the job.
It is irrelevant whether or not discriminatory treatment is intentional.
3. Good practice in recruitment interviewing
The key purpose of a recruitment interview is to assess the skills, experience and general background of job applicants in order to make a decision on which candidate is the most suitable person for a particular job. Questions should therefore be structured to explore facts, and interviewers should take care not to make decisions based on assumptions about applicants linked to their own subjective views and opinions.
It is a good idea for managers to prepare a list of core interview questions to be asked of all applicants for a particular post. This approach ensures consistency and fairness because all interviewees will be given an equal opportunity to sell their skills and abilities. Managers should not, however, restrict themselves to asking only these questions, as there will also be a need to ask questions that are specific to a particular applicant, for example to clarify something vague or ambiguous on an application form or ask about a gap between jobs. In addition, at the interview itself, further unplanned questions will be necessary in order to follow up or probe any relevant matter raised or hinted at by the interviewee.
Following the guidelines below will help those involved in recruitment interviewing to avoid discrimination.
Managers involved in recruitment have a duty to conduct selection interviews fairly and without bias for or against any particular candidate. This is harder than most people think, because all human beings are affected by bias and prejudice, and these often operate at a subconscious level. It is therefore important for managers responsible for recruitment decisions to recognise how bias might influence their thinking.
|Dos and don’ts|
Do recognise that candidates from different racial backgrounds may have different ways of communicating their achievements at a job interview. For example, candidates from certain ethnic backgrounds may, on account of their racial or cultural background, be relatively reserved as regards their experience and achievements. Another point to be aware of is that in some cultures it is considered impolite to make direct eye contact with a person in authority.
Do guard against the “halo effect”. This occurs when something about a job applicant creates a favourable first impression on the interviewer with the result that he or she may not be able to view the candidate’s suitability for the job objectively or recognise any negative elements in his or her background. The interviewer might, for example, find the applicant’s manner, accent or appearance pleasing, or might discover that he or she attended the same school or university as the applicant.
Do recognise your own general personal attitudes, views and likes/dislikes with regard to people, and learn to put these to one side during selection interviews.
Do distinguish between the information that the candidate is presenting and the mode of presentation. Unless presentation skills are relevant to the job in question, a slick and/or confident presentation style will be irrelevant to the person’s suitability for the job.
Don’t allow the initial impression of a job applicant to influence the selection decision, for example by making negative assumptions about an applicant based on mode of dress, general appearance or accent.
Don’t be influenced by stereotypes, for example assuming that older candidates will not be capable of undertaking training in new technology.
4. Effective questioning techniques
- Design questions to check facts, obtain relevant information about each applicant’s background, test achievement and assess aptitude and potential.
- Ask specific questions on matters such as the applicant’s work experience, qualifications, skills, abilities, ambitions and strengths/weaknesses.
- Ask open questions, ie those beginning with “what”, “which”, “why”, “how”, “where”, “when” and “who”, rather than closed questions inviting only a “yes” or “no” answer.
- Ask questions that are challenging, but never ask them in an intimidatory or aggressive tone or manner.
- Ask questions that require the applicant to give examples of real situations that he or she has experienced, for example: “Tell me about a time when you had to discipline a member of your staff. How did you handle it?”
- Ask factual questions about past experience and behaviour and refrain from making assumptions.
Avoiding discriminatory questions
Discrimination can take place in the following circumstances:
- A job applicant is subjected to interview questions that have an underlying discriminatory impact, for example questions put to a woman about her children or childcare arrangements.
- A question put to a job applicant implies that the interviewer thinks there may be a problem. An example could be where a question such as “would you have a problem working on Saturdays?” is asked specifically because the interviewer has deduced (or assumed) that the candidate is Jewish. Such a question could be viewed as directly discriminatory because of religion.
- Negative assumptions are made about the applicant on the basis of the answers given to the above types of questions.
- An applicant who is pregnant is asked questions about plans for maternity leave, childcare, etc.
Candidates should not be asked questions about:
- their marital status or marriage plans;
- childcare arrangements;
- general family commitments and/or domestic arrangements;
- actual or potential pregnancy/maternity leave;
- their partner’s occupation and mobility;
- any actual or potential absences from work for family reasons.
Employment tribunals have consistently taken the view that such questions, if asked of a female candidate, indicate an intention to discriminate (whether conscious or not). This is because questions of this type are usually rooted in an assumption that childcare and other family commitments may have a negative impact on a woman’s commitment to the job, attendance or availability to work overtime.
Instead, questions that explore the applicant’s ability to perform the job should be asked and should be posed to all candidates.
|Don’t say||Do say|
|Are you planning to get married/have a family in the next few years?||What are your general aims and goals over the next three/five years?|
|Who would look after your children if you were asked to travel away from home on a business trip?||The job would involve travelling away on business trips approximately [x] times a year. To what extent would you be able to comply with this?|
|If we needed you to work late at short notice, how would this affect your childcare arrangements?||The job might occasionally require you to work late at short notice. How would you respond if asked to do this?|
|How would your husband feel if we asked you to relocate to a different branch of the company?||How would you feel if we asked you to relocate to a different branch of the company?|
Ultimately, if a job applicant who is suitable for the job in terms of skills and experience is rejected in favour of someone of the opposite sex or of a different racial group, for example, and that person can show that potentially discriminatory questions were asked at the interview, the burden of proof shifts to the employer to prove, on the balance of probabilities, that it did not discriminate.
Interviewing a disabled candidate
There is no duty on job applicants to volunteer to disclose a disability to a prospective employer. In addition, during the recruitment process, it is unlawful to ask about an applicant’s health, which includes asking about disability, before offering him or her a job, except in limited circumstances. The purpose of this prohibition is so that employers do not reject candidates without allowing them to exhibit their suitability for a role.
The following situations are the limited circumstances in which employers are permitted to pose questions about health:
- To establish whether or not an applicant will be able to undergo an assessment, for example a job interview or written test, and whether or not the employer will need to make reasonable adjustments in connection with that assessment, for example reducing the overhead lighting in an assessment room if the applicant is sensitive to light. These questions will most commonly be asked in an invitation to interview letter, and should explain the assessment process and ask the candidate to notify the employer of any reasonable adjustments he or she might require.
- To establish whether or not an applicant will be able to perform a function that is intrinsic to the job for which he or she is applying, after having taken into account reasonable adjustments that could be made to help the applicant overcome any difficulties in performing the role on account of a disability. This will be permissible in very limited circumstances and the questions should be specific to the role. For example, it might be permissible to ask a candidate who is applying to be: a shelf stacker a question about his or her ability to bend; a scaffolder a question relating to his or her ability to climb scaffolding; and a waiter a question relating to his or her ability to carry heavy objects. However, a question relating to the candidate’s ability to lift heavy objects should not be asked of a candidate who is applying for a desk-based role. Broad questions, for example asking a candidate about his or her absence record, are not permitted. To ensure that interviewers recruit the best person for the role, they should explore each candidate’s ability to perform the essential aspects of the role.
- To monitor the diversity in the range of people applying for work. This would typically arise in an equal opportunities monitoring form.
- In certain circumstances, to eliminate a disadvantage experienced by disabled individuals, meet their needs, or encourage their participation in an activity if they are under-represented in that activity.
- To establish whether or not an applicant has a particular disability where having that disability is an occupational requirement, for example to establish whether or not an applicant is HIV positive in respect of a role of HIV mentor.
To avoid discrimination during an interview, line managers should bear in mind the following guidelines:
- Ensure that any questions focus on the applicant’s ability to perform the job duties, and not on the potential difficulties that he or she might have in the job on account of a disability.
- Refrain from asking intrusive questions about the candidate’s medical condition or disability.
- Frame questions in a positive way so as to avoid the risk of the job applicant perceiving that you are looking for or anticipating problems.
- Avoid drawing negative conclusions based on an assumption about a disabled candidate’s capabilities.
Asking a question about health in prohibited circumstances could be evidence of disability discrimination. If an unsuccessful job applicant subsequently brings a disability discrimination complaint, the employer would need to prove that no discrimination took place.
Once a line manager has made an offer of employment to a candidate, he or she can pose questions relating to the applicant’s health. Therefore, it might be permissible to make a job offer conditional on passing a medical examination, if the offer is genuine. Rather than looking for problems, the manager should adopt an attitudeof looking for solutions. Therefore the manager could ask the candidate whether or not he or she will require reasonable adjustments to be made, to suggest adjustments that could be made, and what, if any, helpful adjustments, his or her present or previous employer made.
If a line manager does ask a permitted question about health at any stage of the recruitment process, he or she should take care to ask it in a sensitive manner.
Avoiding age discrimination
When interviewing, managers should beware of placing too much importance on length of experience. Focussing on length of experience will place younger applicants at a disadvantage because they will be less likely than older candidates to have long experience. Instead, managers should concentrate on interviewees’ type and breadth of experience, and their skills, competencies and talents.
Questions about opting out of pensions auto-enrolment
From 1 October 2012, large employers are required to auto-enrol certain workers into a qualifying workplace pension scheme, although workers have the option to opt out of the pension scheme. The duty to auto-enrol eligible workers will apply to all employers on a gradual basis. However, from 30 June 2012, all employers are prohibited from screening job applicants to select only those who will opt out of auto-enrolment. When interviewing, managers should not ask any question or say anything that states or implies that a job applicant’s success could depend on whether or not he or she might opt out of auto-enrolment.
5. Interview notes
It is essential for managers conducting recruitment interviews to keep notes of the interview and afterwards to make a record of the rationale behind the selection decision, ie to note the key reasons or reason why the successful candidate was selected and the other shortlisted candidates rejected. There are several key reasons why such records are important.
- Nobody has a perfect memory and if you have interviewed several candidates during the same day you will inevitably be unable to recall accurately who said what, what the key issues were in relation to a particular candidate, and how a particular question was answered.
- If no records are created and one of the rejected candidates subsequently brings a tribunal claim alleging discrimination, you are unlikely to be able to recall the precise matters that were discussed at the interview or the way in which questions were phrased.
- The absence of any records may lead an employment tribunal to conclude that the whole recruitment process was conducted in a random, subjective or haphazard way.
- If records are available this will provide evidence that the recruitment process was approached in a professional manner. It may also provide specific information that will form a defence against the claim, for example a record that the answers that the candidate gave to specific questions indicated that he or she did not have the essential knowledge or skills required for the job.
- Once a tribunal claimant has shown facts that indicate that he or she might have been treated less favourably on one of the prohibited grounds, the burden of proof shifts to the employer to prove, on the balance of probabilities, that it did not discriminate. In recruitment cases, this means persuading the tribunal that the candidate’s recollection of events is false or inaccurate, that the questions asked were in fact phrased differently or that what was said was not discriminatory. In practice, this would be impossible to achieve without proper records.
Managers should be aware that any record created about an individual and placed in a structured file (or input to a computer) will give rise to individual rights under the Data Protection Act 1998. Specifically job applicants will have the right, upon written request, to be given a copy of their own file. Interview notes should therefore be compiled with this in mind.
6. Further general guidelines
- Obtain information through open questioning on matters such as the applicant’s work experience, qualifications, skills, abilities, knowledge, ambitions and strengths and weaknesses.
- Do not use age as a criterion in the selection process. Age discrimination has been prohibited since October 2006 and age is, in any event, a poor predictor of effective job performance.
- Do not allow gut feeling alone to determine the selection decision, because gut feelings are inevitably influenced by personal attitudes, and may possibly result in unlawful discrimination.
Interviewers who focus on the requirements of the job and the extent to which each applicant’s background matches these will increase their chances of avoiding unlawful discrimination and selecting the most suitable candidate for the job.
7. Test yourself
A line manager inadvertently asks a discriminatory question at a job interview. What are the possible consequences?
- a. There is no possibility of a tribunal claim. Only employees and not job applicants can bring claims of discrimination.
- b. There is no possibility of a tribunal claim. The line manager did not intend to discriminate.
- c. A tribunal claim is possible but the employer cannot be held responsible for the line manager’s actions.
- d. A tribunal claim is possible and the employer will be held responsible for the line manager’s actions.
Which of the following would it be inappropriate for a line manager to ask?
- a. How would you respond if you were asked to work late at short notice?
- b. How would you feel about managing an older team?
- c. How would you feel if in the future we asked you to relocate to our northern office?
- d. What are your general goals over the next five years?
Which of the following questions might it be appropriate to ask a candidate who has a sight impairment in an interview for a typist role?
- a. How will your condition affect your ability to get to work on time?
- b. What is wrong with you?
- c. How might your condition impact on your ability to use a computer?
- d. Are you able to lift heavy equipment?
Which of the following interview questions is unlikely to elicit much useful information?
- a. Which of your previous positions did you enjoy most and why?
- b. What are the main challenges of your current role?
- c. Do you enjoy working in a customer-facing role?
- d. How do you think your previous experience could be of benefit in this role?
Which of the following statements regarding interview notes is true?
- a. An experienced line manager will be able to recall accurately how each candidate answered a particular question so making a written note of responses will be unnecessary.
- b. If there are no interview notes a tribunal will not be able to conclude that the interview was conducted in a discriminatory manner.
- c. As interview notes are for their own sight only, line managers should feel free to note their own assumptions about the candidates where appropriate.
- d. Where an unsuccessful job applicant brings a tribunal claim, accurate interview notes can assist in the defence of the claim.
The answers can be found at the bottom of the line manager briefing.
The author: Lynda Macdonald has worked freelance as a trainer and consultant since 1987, specialising since 1995 in employment law. Prior to this she worked in HR management for over 10 years. Lynda has an LLM in employment law and practice and now concentrates on designing tailored training courses for managers on employment law related topics.
|About XpertHR line manager briefings|
XpertHR line manager briefings are general summaries of current employment law and good practice specially written for line managers.
They are designed to be used by XpertHR subscribers who need to ensure that the line managers in their organisation deal with job applicants and manage workers in accordance with the law and good practice. They can be adapted for use in individual organisations and can be used either as a training resource or as an information resource, subject to the XpertHR terms and conditions of use.
Test yourself answers: 1.(d) 2.(b) 3.(c) 4.(c) 5.(d)