How to avoid discrimination when you’re hiring
A guest blog by Laura Fairchild
As if recruitment wasn’t hard enough already, it might surprise you to learn that a potential applicant or an applicant who’s applied for a job at your company may in fact be able to bring a claim against you for discrimination.
If this happened to you, could you convince an Employment Tribunal that you weren’t discriminating? Without a formal recruitment process, it can be hard to prove this — and many companies, large and small, don’t have a formal, documented, repeatable recruitment process. To top it off, an Employment Tribunal doesn’t require absolute proof that discrimination occurred: it’s sufficient for the applicant to demonstrate that it’s likely that it did.
What is discrimination?
Discrimination occurs when someone with a “protected characteristic” is put at a disadvantage. The law defines the protected characteristics as race, age, sex, maternity/pregnancy, marriage/civil partnership, religion/belief, disability, sexual orientation, and gender reassignment. So a job ad which states ‘Women need not apply’ would amount to direct sex discrimination — it’s directly and explicitly putting women at a disadvantage. Thankfully, most employers find it fairly easy to avoid doing this!
Less obvious, however, is what’s called indirect discrimination. This happens when the employer has a ‘provision, criterion, or practise’ which creates the disadvantage. For example, only offering evening interviews could make it harder for people with childcare responsibilities to apply for the role, which may put more female applicants at a disadvantage. It can be much harder for an employer to spot the indirect consequences of all the requirements they make on applicants. The one defence open to an employer in this situation is when there’s a genuine need for such a requirement. This is why a theatre may advertise for a black male actor to play Othello for authenticity, even though it would exclude some other applicants from applying.
Discrimination can also occur if you don’t make reasonable adjustments required by a disabled applicant, such as giving someone with dyslexia longer to write in a written assessment or adjusting the interview room lighting for someone who suffers from epilepsy. Also, if you discriminate against a disabled applicant because of something arising in consequence of their disability such as rejecting an applicant outright because of their high sickness absences in their previous job, this could also put you in the firing line for a discrimination claim if you can’t justify your actions.
How can you avoid discrimination?
Conveniently, the steps employers should take to avoid discrimination in the recruitment process go hand in hand with the steps they should take to ensure they hire the best candidates.
The key idea is to have a systematic, repeatable process, and make sure that every applicant is treated in the same way.
Know what you’re looking for
Before doing anything, build a clear picture of the role you’re looking to hire. What will the successful applicant be doing? What skills are going to be necessary? Use this to come up with selection criteria that you can use to evaluate CVs and interview responses objectively. The better you can shape up the role, the easier you’ll find it to make decisions along the way.
Focus on the work
At every stage of the recruitment process it should be clear how what you’re asking for relates back to the job itself. Could you explain to someone else why you’re looking for each personal trait listed in the job ad? When interviewing a candidate, do all of the questions you’re asking help to determine an applicant’s suitability for the role?
Think twice when listing requirements such as ’10 years’ experience’, as it could be indirect age discrimination. As this is often used as a proxy for proficiency in a certain area, ask for that instead!
Structure and consistency
In order to compare applicants fairly, you need to make sure they’re all asked the same things. Most people who conduct interviews have never had any training, which means each interview meanders off in its own direction based on how the interviewer is feeling about the interviewee. Even employees who don’t think they’re discriminating against someone can make assumptions about an applicant that end up putting them at a disadvantage.
Counteract this by consciously designing your interviews in advance. Write down a list of relevant questions that every applicant needs to be asked, and make sure your interview panel stick to it. If possible, have several people in each interview, so that one can ask questions while the other notes down the applicant’s responses. This way you can make a fair comparison between candidates after the interviews are complete. Of course, it’s okay (and natural) for your interviewers to ask additional follow up questions based on the applicant’s answers — as long as those questions are relevant to the work!
The final decision
When the time comes to make a decision about an applicant, bring out the selection criteria again (you did define selection criteria, didn’t you?). This helps to prevent your interview panel basing their decision on who they liked personally, and focusses them back on who’d be the best fit for the job. Some companies find it helpful to introduce a scoring system for the selection criteria, but if you’re not using one a simple test is to ask whether you’d feel comfortable explaining the rationale behind the decision to the applicant’s face.
As far as possible, keep a record of your recruitment process and keep these records for around 6–12 months, in case you’re required to produce evidence at a Tribunal. Some of this may be done for you automatically if you’re using software to help manage your process, but things like responses to interview questions, interviewer feedback, and the reasoning behind the final decision may require extra effort.
By more rigidly sticking to a structured process you should be in a far better position to find the best candidate whilst avoiding a costly discrimination claim.
Laura is an Associate Solicitor in the Employment team at Penningtons Manches LLP.