People involved in the recruitment process should possess a working knowledge of the legal basics. There are also several common areas where employers can often inadvertently, fall foul during recruitment which are discussed below.
The legal basics of unlawful discrimination
The Equality Act 2010 is the legislation that sets out which characteristics a person may possess and are protected against unlawful discrimination.
There are currently nine characteristics altogether. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
There are also several ways in which discrimination can arise. These are: direct, indirect, discrimination by association, discrimination by perception, harassment and victimisation.
The Equality Act also contains a clause which allows employers to positively discriminate during recruitment in favour of disadvantaged groups when choosing between candidates who are otherwise equally qualified.
In rare circumstances discrimination in recruitment may be justified because there is a ‘Genuine Occupational Requirement’. For example, theatres may advertise for a ‘female aged between 50 and 65 years of age’ if this is needed for a specific acting role they are casting for. Professional advice should be sought to ensure this is appropriate before beginning a recruitment process.
Adverts and recruitment
When preparing an advert consider factors such as:
- Language: Language which relates to a particular characteristic should usually be avoided. For example, don’t describe the ideal candidate as a ‘he’ or ‘she’. Common mistakes also occur by using words such as ‘experienced’ or ‘school leaver’. This heavily implies the age range of a successful candidate and as such, excludes those who may not be able to identify with either of these phrases. Instead consider using neutral language such as ‘the ideal candidate will be able to demonstrate the following skills…’. Remember that you ought to be looking for the person with the right skills or qualifications required for the job, regardless of the characteristics they possess.
- Imagery: Some adverts may include illustrations, video clips or photos. Many stock images are not diverse, so be proactive in selecting ones which show a greater level of diversity and inclusiveness – younger, older, people with a disability, people wearing religious dress etc.
- Where the advert is placed: Sometimes this choice can actually be bias to certain groups of people. For example, placing an advert in a men’s health magazine. In the past, there has been a case where an internal advert was posted on a staff notice board which was on the wall of a canteen and nowhere else. The noticeboard was at such a height that an employee who was a wheelchair user was not able to see the advert.
Adjustments may be anything that can be removed, adapted or provided to support an employee with their health, in order to perform or attend work to a better degree than they would be capable of otherwise. There is a legal requirement to make reasonable adjustments so that someone with a protected characteristic is not at a disadvantage compared to others who do not have it.
Sometimes aspects of the recruitment process may have to be adapted. Such as: providing wheelchair access, providing application forms in large fonts, holding interviews at certain times of day etc.
It is wise to avoid asking questions which relate to a protected characteristic at the interview stage. It is rare that this will ever have a genuine bearing on whether or not an individual is suitable for the role. If a candidate was asked such a question and were unsuccessful in their application, then if challenged, the burden would be on the employer to prove that the reason they were unsuccessful was not because of the characteristic! It is can be very difficult to prove that something did not happen. For this reason, it is worth avoiding the questions altogether.
Examples of questions that would pose a risk include: ‘have you taken much time off work in the last few years?’, ‘do you have any plans to get married?’, ‘do you have any child care commitments?’, ‘may I ask how old you are?’ or ‘can I ask if you have any protected characteristics?’.
Instead of these, consider asking questions such as: ‘can I confirm you are aware that this is a full time/field based/night-time working position?’, ‘why do you think you would be good at this job?’, ‘do you have any questions for us?’.
Unconscious bias is a current trend in conversations relating to discrimination and diversity.
The concept stems from a basic survival instinct to trust what is familiar and to be distrustful of what is unfamiliar. As a result of this, the human brain instinctively sorts things into these two groups, familiar and unfamiliar. Same and different. Them and us.
Many generally agree that they are more likely to assign something important to a person they feel they can trust the most. Many also generally agree that of the people we know, those that we trust the most in our private lives, tend to also have the most in common with us. It is considered that this is where the common ‘gut instinct’, which is a phrase often wheeled out in the selection of a successful candidate, is born.
This unconscious ‘sorting’ can quickly and easily mean that without realising, recruiters are more likely to give the job, development opportunity, project etc to someone they instinctively trust, and it is likely this person will be similar to them in some way. As a result, the range of diversity becomes narrow and the result can be a team who view the world in a similar way.
Tips: This can be overcome by providing recruiting managers with unconscious bias training. The innate instinct will not be removed, but heightened awareness will mean that they are more conscious of how they may be making decisions.
Linked with data protection, it may also be a good idea to limit the amount of sensitive information provided to a recruitment panel. E-mail addresses, postcodes, names, schools, can give away information about a person which may be sensitive, or which may have pre-conceived ideas attached to them.
You may also consider having a diverse recruitment panel and varying who is involved in appointing candidates.
One of the best ways to safeguard a recruitment process is to keep records of your activities. As part of this exercise, it is worth keeping a log (for a limited period of time and in line with data protection laws of course!) of the objective reasons why candidates have or have not been successful.
When reviewing a reference, remain on alert for possible red flags which indicate a protected characteristic. If you identify any, be careful in how you approach decisions that are made in connection with these. A common problematic area is absence. When receiving a reference which reveals a substantial period of time off work, avoid withdrawing the job offer as a knee jerk response. The cause of the absence could have been due to something protected, such as pregnancy complications.
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