Discrimination against employees is an easy trap to fall into. Whilst some discrimination is done knowingly and with malice, other times innocent comments and statements can be discriminatory without you even realising it.
Unlike many other claims that can be brought in the Employment Tribunal, discrimination has no qualifying period. In actual fact, you could be taken to the Employment Tribunal for discrimination against someone without even employing them.
Discrimination laws apply from the point that the job is advertised which is why it is important that your recruitment process is Watertight.
From the 1st of April 2015 to the 31st of March 2016 83,031 Tribunal applications were made in the UK.
Unlike other Tribunal claims, discrimination claims are not subject to statutory caps and can include awards for injury to feelings. The highest sum awarded in that time was £1,762,130 for a sex discrimination claim. This was quite an extreme case but the average award given for a discrimination claim in that time was £28,400 – still quite a sum!
How do I safely advertise a job?
Under the Equality Act, there can be no evidence of discrimination in any arrangements for either the advertisement jobs or within the job advertisement itself.
Advertisements that contain poor wording can be used as evidence of an intention to discriminate. Job applicants who are rejected or those who don’t apply because they don’t meet the criteria may bring a claim for some sort of discrimination.
It is acceptable to stipulate the essential criteria without which the applicant would be unable to adequately perform the job. Provided it is not discriminatory, desirable criteria may also be specified for example, ‘A background in legal or financial services will be beneficial’.
Keeping job titles gender neutral will help to avoid the risk of sex discrimination (‘bartender’ instead of ‘barman’, for example).
Avoid naming qualifications unless you can objectively justify why applicants would need them. If you are advertising for a Doctor then it stands to reason that they may need specific qualifications – would it be necessary for a production line worker in a factory to have a minimum amount of GCSE’s though?
Care also needs to be taken when specifying the flexibility of a candidate and their ability to work out of hours. Flexibility and the ability to work late should only be included if they are genuine requirements of the role.
Any physical requirements for the job should also be specified i.e. driving, heavy lifting. This way disabled candidates are able to assess any reasonable adjustments which may be possible for them to undertake the role.
Ideally the job advertisement should include a statement that the employer is an equal opportunities employer, and invite disabled applicants to contact the employer to identify any additional support they may need during the recruitment process.
A fair selection process
Shortlisting should be undertaken with careful consideration as it is an important part of the recruitment process.
When shortlisting it is recommended that a selection criteria is used for each candidate. It is important that these selection criteria must directly relate to the requirements of the job in order to evidence that there is no bias or discrimination.
It would be best practice for more than one manager to undertake the shortlisting exercise, and it’s important that their decisions are based on skills and ability alone. They should be trained in diversity and avoiding discrimination on age or other grounds.
What questions should you avoid?
Employers should have prepared consistent questions before the interview which will be put to each candidate. These questions should be centred around the competence of the candidates rather than anything else to remove any bias.
Except where there is genuine occupational requirement, it is discriminatory and contrary to the Equality Act 2010 for an employer to discriminate against a job applicant because of their protected characteristic, such as race, sex, or age. Therefore, questioning should not be directed at any of the characteristics.
The questions below are just a few examples of those which should be avoided. These types of questions provide candidates with evidence to support a discrimination claim:
- Are you married?
- How old are you?
- What is your date of birth?
- How many children do you have?
- What does your husband do?
- What does your husband think of you applying for this role?
- What church do you go to?
- How would you feel about managing younger people?
- And how many more years do you see yourself working?
- When are you planning to retire?
- Where do you come from?
- Which political party do you belong to?
The following are examples of comments which should also be avoided during the interview:
- We were looking for someone more mature.
- We need someone who could travel so we are worried about your childcare responsibilities.
If you are unsure as to whether your recruitment process leaves you at risk then please don’t hesitate to get in touch with us. We can help you to identify whether you are adhering to current regulations and help put in place legally compliant systems to minimise the risk to your business.
We will agree a fixed cost for this work with you, depending on how much we need to do. In some cases, we can offer you free guidance. For our Watertight HR & Legal clients some of this work may be included in your fees so please ask. If you are not a Watertight client and would like a quote, contact us on firstname.lastname@example.org or 0114 3032300.