How can employers ensure that line managers draw up shortlists without unlawfully discriminating against applicants?
By comparing each application with the employee specification to establish whether, on paper, the person has the type of background that is necessary or desirable for the job, managers will minimise the risk of bias on grounds of gender or race (or any other irrelevant factor). Personal information, such as the applicant’s name, gender, marital status, sexual orientation, nationality, country of birth, religion and age, should not form part of the process.
Against what sort of criteria should job applications be compared?
The criteria against which each application can be compared will include qualifications, training, length and type of work experience, level of responsibility and authority held, level of knowledge and skills, and special skills or aptitudes specific to the job.
Is it permissible to exclude any job applicants from a shortlist who submit untidy or badly written applications?
Although it is permissible to exclude applicants on the basis of the presentation of their application form or CV, presentation is often irrelevant except in the case of a professional job or one in which the skills of written communication are expressly required for effective performance. If the job is a manual one that does not require any written communication skills, rejection on the grounds of a poorly presented application form would be inappropriate. Furthermore, if the job applicant has a disability, such as dyslexia or learning difficulties, judging them on their ability to present the written word could be discriminatory and unlawful.
Can an employer use an automated process in making shortlisting decisions?
The Data Protection Act 1998, section 12, provides that the use of automated processing as the sole means of making recruitment decisions is restricted if the decision making evaluates matters such as the applicant’s work performance, conduct or reliability. If an employer uses an automated method as the sole basis for shortlisting, it must notify the applicant as soon as is reasonably practical that the decision was made on this basis. The applicant then has 21 days to ask the employer to reconsider any adverse decision made about them. Any such requests should be taken into account before the final decision is made.
Is it unlawful to exclude an applicant from the shortlist on the grounds that their disability would cause practical difficulties for the employer?
A candidate who has stated in their application that they have a disability should be shortlisted for interview unless they are clearly unsuitable for an unrelated reason – for example, if they lack the necessary experience for the job – or if it is clear from the information provided that the disability would prevent effective or safe performance of the job.
The Disability Discrimination Act 1995, section 4A, imposes a duty on employers to make reasonable adjustments to any provision, criterion or practice that they apply, and to any physical feature of their premises to prevent or reduce any substantial disadvantage that a disabled employee or applicant would otherwise have.
If a job applicant has suffered from a debilitating illness in the past, can they be excluded from the shortlist?
No, not for that reason alone. Where someone has had an illness in the past that at the time would have amounted to a disability under the Disability Discrimination Act 1995, it will be discriminatory to reject the person for employment for this reason (Disability Discrimination Act 1995, section 2).
A history of cancer or depressive illness are two examples.