It is unlawful to discriminate during the recruitment and selection process on the grounds of gender, marital status, race, colour, nationality, ethnic or national origins, disability, sexual orientation, perceived sexual orientation, religion, belief or non-belief or age. Employees involved in the recruitment and selection process must be aware of the legislation aimed at preventing discrimination against job applicants and potential employees, and ensure that employees are selected solely on the basis of merit.
This article aims to cover some of the key areas to be considered to ensure a ‘legal recruitment process’ when recruiting new staff into an organisation. This is not an exhaustative list, but offers some basic pointers to employers looking to ensure a fair and legal recruitment process.
Writing a Job Specification
In writing the Job Description and Person Specification care should be taken that the specified criteria do not unintentionally discriminate against certain groups. Someone with a disability may carry out a task differently, but achieve the same result. Specifying that applicants must have a driving license for example, may exclude an applicant with a visual impairment, or arthritis, who cannot drive. Stating instead that ‘extensive travel throughout the UK to meet clients is essential' may enable a disabled applicant to demonstrate how they will meet this requirement by using alternative methods of transport. Likewise, asking for 'so many years' experience or asking for specific qualifications may directly or indirectly discriminate on the grounds of age.
When stating the required experience for a role, it is important to bear in mind that the experience need not always be in the same type of work, as other ‘life experiences' may have demanded equivalent qualities. For example, an applicant may have acquired experience of budgets through running a home. Unless it is essential and objectively justifiable setting minimum periods of experience should be avoided as some applicants may have taken a career break and therefore may not be able to offer ‘5 years' experience of office management' but may have sufficient knowledge, skills and experience to carry out the duties of the post.
Likewise, younger people who have the skills required may not have had the opportunity to demonstrate them over an extended period of time. When taking briefings and working with the business on role profiles it is essential that experience is qualified by technical/commercial knowledge rather than using x number of years experience. This also means if a hiring manager needs to supply a spec for an agency a clear briefing can be given regarding the nature of experience required rather than the length.
Advertising
Advertisements must not include any unjustifiable requirement or condition, which would have the effect of discriminating generally against one group of the population in favor of another. All essential and the most important of the desirable criteria as outlined in the Person Specification must be included in the advertisement. Potential job applicants can then determine whether or not they have the necessary skills, qualifications and experience to apply.
In departments where women, minority ethnic groups, people within particular age groups, or people with disabilities or are under-represented in a similar post to that being advertised, consideration should be given to advertising in media that are targeted at specific groups. Images are equally as important as language and people images must be chosen and used carefully, ensuring a wide mix of ages.
Below are some alternative suggestions to using ‘x’ years experience:
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demonstrable experience
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interacting at an x level
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proven experience in
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management of x people across x sites
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in-depth knowledge of
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experience of multi-disciplinary teams
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solid understanding of
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significant experience of
Language to avoid:
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Young
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Lively
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Trendy
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Mature
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Energetic
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Fast paced
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Dependable
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Experience driven
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Reliable
The Short-listing Process
The process of short-listing involves each applicant being assessed objectively and consistently against the essential and desirable criteria outlined in the Person Specification, not against one another. It is vital that new criteria are not introduced at this stage and arbitrary criteria, which could be deemed to be discriminatory, should be avoided, for example:
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Applicants over/under a certain age - direct age discrimination and could indirectly discriminate against women/men
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Married women - direct sex discrimination
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Women with children - direct sex discrimination
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Handwritten applications - may be linked directly to a disability
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Applicants with poor handwriting - may be linked directly to a disability
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Typewritten applications - may be linked directly to a disability
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Applicants who have been on employment schemes run by the government - whether an applicant has been on an employment scheme is not relevant to the short-listing process and applicants should only be excluded from the short-list if they do not meet the selection criteria
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Applicants who have not been employed for a longtime - direct age discrimination and may constitute indirect sex discrimination because it may have a disproportionate effect on women who have taken a career break. It may also constitute disability discrimination as an applicant with a disability may have had a long period of absence from work due to his/her disability
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Applicants with unusual names - this is not relevant to the short-listing process and may constitute race discrimination
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Applicants who seem 'over qualified' - there could be a legitimate personal reason or a disability-related reason for a change of career or a seeming 'backtrack'
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Periods of inactivity - may be linked directly to a disability
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Voluntary work and lifeexperience - disabled applicants may have gained invaluable organisational and creative problem-solving skills in response to their experience of disability
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Applicants with a poor level of English or where English is not their firstlanguage - if this is not an essential requirement for the job, it may constitute race discrimination
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Applicants from certain geographical areas of the country - this is not part of the selection criteria and would be discriminatory if it was applied
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Non European Economic Area (EEA) applicants - some non-EEA applicants have a legal right to work in the UK. The successful applicant will be asked to evidence his/her right to work in the UK prior to commencement of employment.
Principles of Interview Questioning
In advance of the date of the selection process, members of the selection panel should decide what questions will be asked at the interview. These questions should be based on the requirements outlined in the Person Specification for the post. The panel should avoid asking candidates questions relating to the following, which could be deemed to be discriminatory:
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marital status;
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occupation of partner;
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domestic arrangements;
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whether the candidate has or intends to have children;
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ethnic origin/country of origin;
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sexual orientation;
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trade union activities;
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political or religious beliefs
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age
If a candidate volunteers this type of information it must not form a basis for selection decisions.
The success of any organisation is reliant on having the right people in the right positions. With this in mind, effective recruitment practices within a legal framework are essential.
A recent CIPD survey estimated the average cost of filling a vacancy per employee at £3,950, rising to £4,625 if the associated costs of labour turnover were taken into account. The same survey indicated that 85% of organisations were reporting recruitment difficulties, which included a lack of specialist skills and required experience. Hiring and retaining the right people in the present recruitment climate is therefore essential.
It is well worth investing time and energy at the recruitment stage as it is likely to take far longer to “manage out” a new employee who soon demonstrates that they have not lived up to all their application form or interview suggested. Inevitably you want to avoid being dragged into legal action which could prove costly not only in financial terms, but to your reputation as an employer of choice. With this in mind it is essential to understand your legal position as an employer and adhere to specific legal requirements when recruiting new employees into your organisation.