Louise Donaldson, professional support lawyer and member of Pinsent Mason’s employment group, offers advice on creating a recruitment policy.
Aims of the policy
A considered and well thought-out approach is needed when creating a recruitment policy, rather than trying to tackle issues on an ad-hoc basis (and is less likely to result in a successful tribunal claim). Employers need to identify their needs and objectives to recruit the best person for the job. However, as with most other areas of employment law, the employer is at risk if it gets the process wrong.
Essential elements
The usual stages in the recruitment process are:
- Advertisement
- Selection and interview
- Offer and appointment
However, when formulating a policy in respect of recruitment an employer must:
- Look at the skills and qualifications necessary for an individual to be able to do the job
- Be objective
- Avoid discriminatory language or implications
- Remain open-minded
Advertising
It is unlawful to publish or cause to be published any advert that indicates, or might reasonably be understood to indicate, an intention to discriminate against job applicants on grounds of race, sex or disability. ‘Advertisement’ is widely defined and covers public or private notices – whether published in newspapers, on the radio or television, or by distributing circulars or catalogues.
Although only the Equal Opportunities Commission is entitled to bring a claim in respect of a discriminatory advertisement, job applicants who are unsuccessful in their job application will be able to rely on the fact that an advertisement was discriminatory as evidence that the employer discriminated against them in its recruitment arrangements. This applies equally to other types of unlawful discrimination, such a discrimination on grounds of religion or belief, sexual orientation and age (age discrimination becomes unlawful in October 2006).
Care must therefore be taken with the wording of an advert:
- Gender neutral language should be used
- Nothing within an advert – graphics, style or expression – should indicate a predisposition to employ a person of a specific gender, race, religion, sexual orientation or age or not to employ a disabled person
- Ensure that recruitment criteria can be objectively justified by reference to the job in question
- It is good practice to include an equal opportunities statement within a job advert encouraging applications from all sections of the community and confirming that the employer is an equal opportunities employer.
Records should be kept of the geographical scope of distribution of the advert and responses received. It is prudent to try to reach as broad an audience as possible to avoid complaints of indirect discrimination. Jobs should not generally be advertised only internally.
Most employers have stringent equal opportunities policies and these should be adhered to, not only in the practices undertaken during employment, but in those leading to it.
Selection and interview
Selection criteria should be carefully drawn up at the outset and consistently applied to all candidates. These should directly relate to the requirements of the job, be clear, precise and -most importantly – objective.
Be careful with experience requirements – a requirement for a certain number of years experience may discriminate indirectly on grounds of age. It is better to express experience requirements by reference to the type and level of experience needed, rather than the number of years.
No assumptions should be made as to stereotypical requirements for a job – for example, just because a job involves heavy lifting, this does not mean female candidates should be excluded.
Requirements such as specific length of residence in the UK are likely to be considered discriminatory unless they are absolutely essential. You should not demand a standard of spoken or written English higher than necessary to do the job.
When considering applications from individuals who wish to work on a part-time basis, an employer should consider whether part-time employees could undertake that job. A blanket refusal to do so may adversely affect one gender and give rise to a potential complaint for indirect sex discrimination.
When considering applicants with disabilities, an employer should note the positive obligation to make reasonable adjustments to ensure that a disabled employee is not disadvantaged in the recruitment process because of their disability. This could be by, for example, ensuring that arrangements are made to facilitate attendance at interview.
There is little benefit in providing and seeking to rely on objective criteria if the process falls down on the basis of a ‘gut feeling’. One way of ensuring prejudices do not influence a decision is to ensure more than one person carries out the interview.
An agreed set of questions should be put to all interviewees. As with the selection criteria, it is essential that the interview questions be considered in advance, as a carelessly worded question can imply prejudice.
Avoid questions concerning the candidate’s personal life unless they are directly relevant to the requirements of the job in question.
Offer and appointment
Some employers use a system of points in an effort to remove subjectivity from the process. Although it is not absolutely necessary to offer the job to the individual with the highest points tally, selecting the individual who did not score highest may suggest discrimination should there be no satisfactory explanation.
The successful candidate should be offered the position subject to any conditions that the employer may impose (or be required to impose), such as satisfactory references and provision of evidence of the right to work in the UK.
A copy of the employer’s terms of employment and any ancillary documents sent before acceptance – receipted by the successful candidate – will also reduce the likelihood of later disputes as to what was agreed.
There is no legal obligation on an employer to ‘volunteer’ to tell applicants why they have been unsuccessful, but many employers committed to equal opportunities will provide the feedback after interviews if required. This enables employers to explain to the candidates why they were not selected and may reduce the likelihood of a claim for discrimination being made. This will also further demonstrate the objectivity and openness used in the process to that point.
Remember, unsuccessful candidates may ask to see the employer’s recruitment papers under the Data Protection Act 1998 and through discrimination questionnaires.
This article is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.
Key legislation
Disability Discrimination Act 1995
Employment Equality (Sexual Orientation) Regulations 2003
Employment Equality (Religion or Belief) Regulations 2003
Employment Equality (Age) Regulations 2006
Useful websites
Equal Opportunities Commission
Commission for Racial Equality
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