A recent news story has emerged regarding a recruitment policy from the RAF which endeavoured to bolster the numbers of female and ethnic minorities within the air force. Although well-intentioned, the policy has consequently led to an award of £5,000 each being issued to 31 white males to compensate them for being unfairly disadvantaged. I won’t win any mathematics prizes for this, but that is £155k! Leaked emails on the subject noted a reluctance to see “useless white male pilots” included within the board to shift focus on to minority employees.
As employers justly continue to try and promote diversity and equality within the workplace, it is not unlikely that similar scenarios will be occurring in other workplaces. Accordingly, employers need to take care to ensure that any recruitment policies they introduce do not pose a risk of a discrimination claim.
The overarching legal provision on this subject is the Equality Act 2010 (EqA 2010). This provides that an employer must not discriminate against or victimise a job applicant in the arrangements for deciding whom to offer employment, the terms on which employment should be offered or by not offering employment. Likewise, employers should not harass an individual who has applied for employment. These are tricky areas to navigate.
In considering this, employers need to be mindful of how their recruitment strategy may impact any of the nine protected characteristics found within the EqA 2010. The protected characteristics can be found under s4 and are as follows: age, disability, gender reassignment, marriage/civil partnership, race, religion/belief, sex, sexual orientation. A similar, hypothetical example of what may be discrimination in the recruitment process could be a push to recruit younger employees which sees older applicants overlooked. In this case, the employer may be on the wrong end of an age discrimination claim.
The underlying issue in an example such as the RAF case above is that, in their efforts to be more diverse, employers may effectively just be carrying out a “tick-box” exercise to hit certain targets. In doing so, they may just be swapping one group for another and flying into danger.
So what can employers do to ensure that they are both promoting diversity in their recruitment without disadvantaging another group?
The Equality and Human Rights Commission (EHRC) has made several recommendations in this regard. These include defining the selection criteria in terms of measurable skills such as knowledge and experience as opposed chemistry or “fit” related criteria which may see the employer recruit in its own image.
It is also suggested that when recruiting, employers cast a wide net in publicising the role. This includes using a mixture of channels such as social media, recruitment agencies and groups specifically aimed at encouraging applications from underrepresented groups.
Furthermore, the EHRC also suggests using “positive action” such as including statements to encourage applications from underrepresented groups or offering shadowing or mentoring programmes to groups that may require it. They also suggest utilising the tie break provision where candidates are equally qualified and to select the candidate from the underrepresented group would be a proportionate way of addressing issues of under representation or disadvantage.
Many employers are making a push towards making their recruitment policies more diverse and rightfully so. Nevertheless, employers need to be mindful that this should not be a case of closing the door on one group to open it for another – instead, the focus should be on widening the entrance to ensure that all groups have a fair chance at getting a foot in the door. Though the above example from the RAF has not been taken to tribunal, the story highlights that a blatant disregard for recruiting one group in favour of another will likely be discrimination and be difficult to justify. An employer who follows the EHRC recommendations might be able to avoid having to parachute in the lawyers.
If you have any questions on whether a recruitment process is compliant with the law or any other area of Employment law, please get in touch with Blackadders Employment Team, working across Scotland.