Employment rights protect not only existing employees but also potential employees. Employers need to ensure that discriminatory measures are not used at the recruitment stage. This includes job advertisements, the interview and the selection process.
The Equality Act 2010 makes discrimination on the grounds of certain protected characteristics unlawful. These characteristics are sex, race (be it colour, race, nationality or national origin), disability, age, gender reassignment, pregnancy and maternity, marriage or civil partnership and religion or belief. In the recruitment process unlawful discrimination can occur where (because of a protected characteristic) the employer discriminates against an applicant either in the arrangements they make for deciding to whom to offer employment, in respect of the terms on which they offer a successful applicant employment, or by not offering an applicant employment.
In the first instance it is always advisable to have a written policy covering the selection process. This should be provided to all interviewers and should cover the content of the job advertisement/selection procedures and the conduct of interviews.
Before a position is advertised, a predetermined role profile should be drawn up establishing the criteria which the successful applicant must meet. The criteria must not be departed from when assessing candidates and should compromise elements which are considered to be necessary for the successful performance of that post. The criteria must be non discriminatory. Discriminatory criteria can be set in limited circumstances where there is an operational requirement for them. For example, it may be necessary to restrict access to a post to one sex for reasons of authenticity, privacy or decency, because of restrictions on accommodation in live in jobs and where positions are to be held by a married couple.
Care should be taken when an advert is drawn up to avoid using language which discriminates. For example adverts which indicate employers are looking for "fit" or "energetic" employees could discriminate against employees who have a disability. Similarly, age discrimination legislation means that words such as "youthful" or "would suit recent graduate" are likely to be discriminatory.
On receipt of CVs, you should select for interview with reference to your original set criteria and not on the basis of any information in the CV which might be said to relate to any of the protected characteristics.
If during the course of the interview it becomes apparent that a candidate has a disability which may make it difficult for them to carry out all of the duties for the post and, but for that disability, they are the best person for the job, then the employer is under a legal duty to consider making reasonable adjustments to enable them to then carry out the ordinary functions of the post. Reasonable adjustments depend on the size and economic resources of that business and can vary from, for example, altering the layout of the filing system so that a disabled user can access all files, to installing a wheelchair ramp.
The duty placed on employers to make reasonable adjustments extends beyond merely making arrangements and includes also any “provision, criterion or practice”. This means that the duty to make reasonable adjustments will arise where a provision, criterion or practice applied by or on behalf of the employer, or any physical features of the premises occupied by the employer, place a disabled person at a substantial disadvantage compared to people who are not disabled. However, the employer isn’t expected to create a job for a disabled candidate.
Employers will often wish to know about the health of potential employees, however, the Equality Act prevents them asking job applicants about their health during the recruitment process unless the questions are for certain specific purposes. These include questions designed to establish whether the applicant will be medically able to undertake the assessment or interview, to determine whether the applicant would be able to carry out an essential part of the role, or to monitor diversity amongst applicants. The definition of a health question is wide ranging and can include questions about matters such as sickness absence records. The effect of asking health questions not related to these purposes is that the burden of proof at a subsequent Tribunal will shift to the employer. This makes it easier for a claimant to establish that discrimination has taken place and so employers should be very careful when asking medical questions during the recruitment process. Employers should try and make sure any questions are relevant to one of these excluded purposes and that the question is necessary for achieving that purpose. The aim of asking a question should be made clear and the question itself should be unambiguous and carefully worded.
With discrimination claims on the increase, prospective employers must be increasingly vigilant. Now may be the time to be reviewing your recruitment procedures.
For an overview of UK employment law see A guide to employment law in Scotland, England & Wales
If you'd like to speak with us, please contact our Employment team.
The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.