Avoiding Discrimination in Recruitment

We all know that there are things to avoid saying while recruiting, but are you confident enough of the facts to be sure you’re not risking a tribunal claim from someone who wasn’t successful? Do you know, for example, what makes a fair job advertisement? Could you fairly interview a pregnant woman? Do you know what support is available to recruit those with disabilities?

Protected Characteristics

At the centre of avoiding discrimination are the protected characteristics; they are – sex (including sexual orientation, pregnancy, gender and gender reassignment), age, disability, marriage, race or religion. It would be discriminatory if your selection was influenced by, or based on, any of these characteristics.  It can be indirectly discriminatory if you have a requirement that puts certain groups of people at a disadvantage.

“Essential to the job”

The risks and uncertainty arise because there are no hard and fast rules on banned words or questions. It is very much down to judgement. If the words or questions used could inadvertently put someone at a disadvantage, then there is a potential problem.

Before you design your advert or interview questions, ensure everything specified is actually essential to the job. For instance, a labouring role does not need a young man – it needs someone physically strong and capable. Make sure with your criteria that you are not indirectly excluding someone with a protected characteristic.

It is good practice to plan your questions in advance and ask every candidate the same questions. This ensures your questions are relevant to the role rather than the person you are interviewing. For example, you may be tempted to ask a 30 something woman how she intends to juggle children and getting to work on time, but you may not even consider this when interviewing a 50 year old man.  

Avoiding pitfalls

Age Discrimination

It is common to see adverts with requirements for a specific number of years experience. Remember that it is not the length of time that matters – rather the quality of experience and learning in that time. You could spend 10 years in a role and learn nothing; or you could spend 5 years intensively developing your skills. Requiring a specific length of experience could be discriminatory against a younger person. Instead be very specific about what experience you want the person to have had – what do you want them to have achieved. Avoid asking dates of birth until you need the information for your HR records. Avoid words which imply a certain age – dynamic, mature, junior, etc.

Sex Discrimination

It is unlawful to look specifically for a man or a woman to fill a position – whether it’s to “fit in to a team” or because of personal preference. The exceptions are when something is essential to the job, e.g. an acting role must be male, or a women’s ward in a hospital requires a number of female staff. Avoid gender specific words such as waitress or salesman. When interviewing, remember to steer clear of questions relating to pregnancy, parenthood or marital status. Hopefully it goes without saying that you must take the best person for the job in terms of capability, regardless of sexual orientation or gender.

Racial and Religious discrimination

Race and religion should not influence your adverts or decisions. Language requirements should be based on the language rather than nationality, for instance.  Someone does not need to have English as their mother tongue to be able to communicate clearly.

In terms of religious practices such as not being able to work on certain days or times, we would recommend you park this as a consideration until you know who is right for the job.  You should not make any assumptions as to people’s beliefs or practice.  If you do offer someone a role and they say that they can’t work certain times, you can discuss this with them then.  It can, in some circumstances, be lawful to require someone to work at this time if it is critical to the business – for example, a chef for a midnight soup kitchen. However, it is prudent to be very careful in these situations and question whether it is vital to the role.  Not only for legal reasons but also because flexibility in this regard is great for employee engagement.  

Disability

Reasonable modifications should be considered to accommodate a person with a disability, both to go through the selection process and if they are the best person for the role. It is practical to ask about what adjustments someone might need in order to perform a role – as long as your motivation is to try and accommodate their requirements.  What is considered ‘reasonable’ in terms of adjustments is a matter for judgement.  If an adjustment would require extensive physical changes to the working space, then the expectations on larger employers tend to be higher than those on small employers, but support is available for funding if that is the challenge.  Many adjustments can be made with no costs at all. You can read more about employing disabled people and Access to Work funding on the gov.uk website.  

Positive Discrimination vs Positive Action

There is often confusion in this area.  It is illegal to ‘positively discriminate’, for example, by selecting a male nursery teacher over a female candidate, to balance out under-representation in a nursery.  It is however legal to take ‘positive action’.  This could include action that encourages or enables a full range of people to apply for a role, or helps to remove a disadvantage potentially faced by certain groups.  For example, an employer may hold an event to encourage people from ethnic minorities to consider working in their field, and provide information that may assist with an application. But must then make the recruitment decision on the best person for the job, regardless of whether they are part of this group or not.  

Summary

Discrimination in recruitment doesn’t need to be a minefield. You can ensure you stay the right side of the law by questioning the wording you use and focusing on what is really essential for the job.  Many of the pitfalls come from the short-hand that we use and unconscious assumptions that we make. When we picture our “ideal candidate” in our heads they will often look like us or like those who have performed the role previously, and we are therefore unconsciously drawn to candidates who sound or look like that image.  Awareness of this is the biggest hurdle in avoiding discrimination, not only to avoid a tribunal claim but also to move toward being truly inclusive.