The world and beyond – Surviving in the economic jungle

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Discrimination – The recruitment black hole

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DiscriminationUnemployment rates are at an all-time low. And the Chartered Institute of Personnel and Development (CIPD) reports that more private firms are planning to recruit even more staff in 2015 than last year.

Any company thinking of recruiting in the near future should be aware that changes to various parts of discrimination law in the past five years makes it an offence not only to discriminate against employees, but people who are interviewed for jobs. In fact discrimination law applies to every part of the recruitment process from job advertisement through to candidate selection to interview and offer/rejection.

This responsibility does not only fall to the HR department: Every person involved in the recruitment process are compelled to comply with the legal requirements to avoid discrimination and potential litigation.

It is illegal to discriminate against age, gender, pregnancy, married or civil partner status, colour, race, nationality, ethnic origins and national origins, religion or belief, sexual orientation, disability. Each of these areas is covered by a separate section of legislation and it is very easy to fall foul of the law by using wording, treatment or documentation that is contrary to the legal requirements.

Its is also important to note that not intending to discriminate is not an excuse in the eyes of the law.

Hiring employers are recommended to document the recruitment process to ensure objective, consistent and structured decision-making. This applies equally to recruitment agencies. Also, an employer must always be able to justify their decision in recruiting a particular person in case of an application to an employment tribunal. If the issue reached a tribunal, you would have to provide evidence showing how and why you reached your decision, and tribunals place more weight on documented evidence than on oral witness. Please note that in some cases, it is not even necessary for the candidate to have applied for the job in order to be discriminated against – Job ads that hint at or contain potentially discriminatory or exclusionary text will stand up in a court of law.

Best practice

It is very important to have an equality policy in place, and to feed this through all the steps of the recruitment process:

  • Job advertisement. It is unlawful for a job advertisement to specify that the applicant must be of a particular age, gender, race, etc – unless being of that gender, race, etc is a genuine occupational requirement/qualification.* (Words like young, mother language, etc. can be construed as potentially discriminatory)
  • Job specification. Identify the qualifications, skills and experience required for the job, eg NVQ level or equivalent, customer handling with experience of difficult situations.  Anything that is not specific to the job should be excluded.
  • Person specification. Identify the personal qualities required for the job, eg focus, persistence, determination. You can set out any genuine occupational requirements or qualifications, but do not ask for any that are unrelated to the job. For example it would be discriminatory to ask for good written English, where this was not required to do the job.
  • Application forms. Only ask for the minimum of personal details. However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be shortlisted for interview, but asking for their date of birth or marital status might be potentially discriminatory.

Structured process

A well-structured process actually aids decision-making and delivers an objective hiring decision. It is important to document each step:

  • Short list creation. You should document how the choice was made in accordance with the objective criteria listed in the job and person descriptions.
  • Interview notes. Keep a record of how the interviewees performed in relation to questions based on the objective criteria. When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership or whether they have plans to have children.
  • Selection decision. Note down how the successful candidate was selected in relation to the objective criteria.

Dealing with Recruitment Agencies

How does your agency respond to the implications of discrimination in recruitment? Recruiters with up to date professional qualifications are likely to be aware of the requirements of legislation pertaining to the recruitment process. If they don’t the implications for client and candidate alike can be severe.

 

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