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Avoiding discrimination in recruitment

February 6, 2024

The return of the BBC’s Apprentice means that most Thursday nights you will find me both cringing and laughing at the antics of another group of hopefuls as they battle it out to become Lord Sugar’s business partner.  

The original concept of the show was modelled on the US version as “the ultimate job interview”, with the winner being hired to work for Lord Sugar.  But each year I can’t help asking – how do you ‘fire’ a job candidate, who you have not actually engaged? 

Of course, the real risk to employers during a recruitment process is discrimination claims.  

As we know, the Equality Act 2010 provides that discrimination and harassment is unlawful in relation to the nine ‘protected characteristics’ of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. 

It also provides that an employer must not discriminate or victimise a person:

• In the arrangements it makes for deciding to whom to offer employment to;
• As to the terms it offers a person employment; and
• By not offering the person employment.

Additionally, the prospective employer must not harass the person who has applied to them for employment.

There are a number of ways that employers can mitigate the risk of discrimination claims during recruitment:

Policies and procedures – employers should ensure that they have clear policies and procedures for recruitment that are regularly reviewed and complied with. 

Training – provide training and instruction to those carrying out the recruitment process and keep records of this.  It is also important for the training to include awareness of unconscious bias that can occur such as in relation to a person’s background or cultural environment. 

Document the process – document the recruitment process so that you have a paper trail in the event of a complaint or tribunal claim so that you can demonstrate the decision-making process, justify the decisions reached and evidence that the selection was made for objective reasons.

Statutory Codes of Practice – The Equality and Human Rights Commission has produced The Employment Statutory Code of Practice (the EHRC Code) which includes recommended practice for employers on avoiding discrimination in recruitment.  Following this can be used as evidence in employment tribunal proceedings to successfully defend discrimination claims.

Reasonable adjustments – be prepared to consider what reasonable adjustments may need to be made during the recruitment process to disabled candidates, such as providing questions in advance or information in an accessible format.  It is useful to include a written request on all material provided that any disabled applicants should let you know in advance of any adjustments they may require during the process. 

Job descriptions – use a job description / job specification which focuses on the non-discriminatory criteria required for the role.  When preparing a criteria ensure it can be objectively justified.  For example, consider if you can genuinely state a role to be full time only.

Advertising – whilst it may seem to be an obvious point, do think about the wording you are using so that it doesn’t discriminate against those with protected characteristics.  Age discrimination is a usual pitfall, so avoid advertising for a ‘young’ or ‘mature’ person or a person within a particular age bracket, unless you can objectively justify it.  

Questioning – it is safest to have fixed questions that are asked to every candidate. It is best to avoid questions about an employee’s health or disability (other than for considering reasonable adjustments), sickness absence, marital status, whether they are pregnant or any future plans for this, childcare arrangements etc.  It can help to request personal monitoring information on a separate part of an application form that is withheld from those carrying out the short-listing and interview process.

Artificial Intelligence – AI is increasingly being used as part of a recruitment process, and if that is being used the training should also cover this.  It is important that managers should understand how the AI tool used operates and how best to interpret and use the resulting data. 

Social media searches – recruitment is not easy, and the possibility of finding out more about a potential employee by ‘googling’ their social media profile is tempting.  However, it is likely to reveal information about an individual’s personal life that can increase the potential for conscious or unconscious discrimination in the decision-making process.  ACAS advises against it.  But if you are using these searches, it is best to ensure applicants know your policy on online searches, you ensure it is consistently applied and if information is found online the applicant is given an opportunity to discuss it with you, least it be inaccurate or incomplete. There are also data protection and privacy issues to consider.

Liability for acts of recruitment agents – a prospective employer may be vicariously liable for consultants, headhunters, employment agencies, or recruitment agents that it uses to carry out recruitment on its behalf, regardless of whether the agent’s acts were done with the principal’s knowledge or approval.  It is unlikely that this would extend to a situation where the agent has acted outside the scope of the principal’s express instructions not to discriminate.  Therefore, keep a paper trail of instructions given. 

Tribunal claims for discrimination in recruitment (other than for harassment) are not limited to candidates who have applied for the job.  In theory a person could claim to have suffered discrimination or victimisation in the arrangements for recruitment, without having applied for the job in question.  Although, it is likely that these types of claims would be limited to the way the job has been advertised. 

If you have any questions about this, or any other Employment law issue, then please get in touch with the Blackadders Employment team with offices throughout Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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