Sally O’Reilly looks at the potential
legal pitfalls of using graphology in recruitment and selection.
Although graphology is still
used by relatively few UK firms for recruitment and selection, there are legal
implications for those that do.
According to John Taylor, a
partner with Hardwick Stallards Solicitors, it is perfectly legal to use
graphology as a selection test.
"It may not be reliable,
and may not be advisable, but it is certainly not illegal to use graphology as
part of a recruitment process," he says
"But that is not the end
of it – because the law can be used to scrutinise the way in which an employer
records, and uses, the results of a graphology test."
Data Protection
Act
There is also the possibility
that employers could fall foul of the Data Protection Act 1998 if they use
graphology to help with the selection process. The Act has been in force for a
long time, but on 24 October 2001 this year it was extended to include data
recorded manually.
"The results of the tests
would almost certainly be ‘data’, as defined by the Act," says Taylor.
"Therefore the data recorded by the employer would be subject to its
‘protection principles’ and the ‘data subject’ – the Act’s name for a person –
would have the rights the Act confers.
"Those include the right
of access to the data, the right to obtain copies, and the right to have errors
corrected. The Act gives further rights, including the right to obtain a court
order against the employer, and to recover compensation from him for any damage
caused by his breach of the Act."
But the good news is that
employers wouldn’t fall foul of the Act simply by recording results of graphology
tests.
Disability
Discrimination Act
Another potential stumbling
block is the Disability Discrimination Act, although Taylor points out that
there are no hard and fast rules here. If, for instance, an applicant with
dyslexia accused the firm of discrimination under the Act, there are
circumstances which would mean they had a case.
"This is one of those
questions to which the answer is: ‘it all depends’," says Taylor. "If
the dyslexia was only mild, then the job applicant might not even be considered
disabled under the Act. If that was the case, then there could be no question
of disability discrimination against them.
"But if the dyslexia was
more severe, then – as stated in the Code of Practice which is to be read
alongside the Act – the employer should allow the applicant more time to
complete the graphology test. If the employer does this, then he will have made
the ‘reasonable adjustment’ required by the Act and so, again, there will have
been no disability discrimination against the applicant, even if their
application is rejected."
If the applicant has severe
dyslexia, has to take the test in the same time as everyone else, and is then
rejected, then it’s still not inevitable that a charge of disability
discrimination would stand up.
"If they are rejected
because of their bad handwriting (not due to his dyslexia) then they would not
have been rejected on account of any disability and, yet again, there would
have been no discrimination against them," Taylor asserts.
If, on the other hand, an
applicant is rejected because of their bad spelling (due to their dyslexia)
then there could well be a case for discrimination. In that case, the employer
would have to show that its treatment of the applicant was "both material
to the circumstances of the particular case and substantial".
