UK employers which are recruiting should pay attention to the Equality Act 2010 which prohibits discrimination in relation to the nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion and belief; sex and sexual orientation. The Act makes clear that employers must not discriminate when choosing employees or setting their terms. This covers the format and content of application forms, the timing and location of interviews and any specific job requirements an employer attaches to a position.
Claims of discrimination can be brought by job applicants, not only against the prospective employer, but also any employees and recruitment agents who were responsible for discrimination or harassment. Such claims can result in high awards of compensation being made against an employer, and can also be reputationally damaging – the opposite of what any employer wants when competing for talent in today’s market.
The first thing a prospective employee sees when undertaking their job search is an employer’s job advertisement. Whilst employers will want to innovate to make their adverts appealing and attractive, they need to be careful to ensure that adverts do not contain wording that could discriminate, directly or indirectly. For example, job adverts should not include wording that suggest adjustments will not be made for disabled people, or that they should not bother applying. They should also avoid the use of phrases, such as, “recent graduate” and or “highly experienced”, which could also lead to claims for age discrimination; and when it comes to sex, gender neutral terminology is key. A wise employer will ensure that the wording of its job adverts are checked carefully by HR to ensure that they only reference real requirements for the role, and do not inadvertently use terminology that may give rise to a discrimination claim.
It is, however, lawful for an employer to advertise for someone with a particular protected characteristic where there is an occupational requirement. For example, if the role were to involve intimate care tasks relating to woman, it may be an occupational requirement for the role of care worker, for the applicant to be female.
When it comes to disabled applicants, employers must ensure that they make reasonable adjustments during the application process when required. This will include providing and accepting information in different formats, which are more accessible for the disabled person.
Consideration should be given to where a job advert is placed. For example, placing an advert only in a magazine advertised as a “men’s magazine”, predominantly read by men, could cause discrimination. Online adverts only may not reach older or disabled workers, for example.
Employers should recognise that terminology of job advertisements is not just a legal issue. When it comes to the global race for talent, employers will want to ensure that they are not discouraging specific individuals, or groups of individuals from applying. For example, it has been reported that the use of certain words can put women off from applying for jobs.
It is critical that those conducting interviews do not make decisions based on prejudice and sterotypes, but focus on what is relevant to the job description. A wise employer will ensure that those involved in interviews and selection panels have had equality training, to help them avoid making assumptions based on stereotypes, or asking questions that are not relevant to the requirements of the job. Questions related to protected characteristics, such as those relating to marital status, childcare arrangements or living arrangements must be avoided.
Questions about disability or health can only be asked if health or disability is a necessary requirement of the job that can’t be met with reasonable adjustments, if the employer is trying to find out if a candidate needs adjustments to take part in selection, or positive action is being used to recruit.
When it comes to arrangements for interviews, employers must give consideration to whether any reasonable adjustments should be made to enable a disabled employee to attend. An employer should ensure that it has already asked whether any reasonable adjustments are needed for the interview either in the application for, or the letter inviting the candidate for interview.
Employers need to be aware that applicants do need to inform you of any spent criminal convictions and, if they do, an employer must treat the applicant as if the conviction has not happened.
Offering the job
An employer must not discriminate against a person in the terms on which it offers employment. For example, it would be unlawful for an employer to change its usual practice relating to probationary periods, offering a longer probationary period to someone who has just returned for maternity leave, or who has a disability because of their perception that due to these factors a longer period to assess their capabilities is required.
Employers may want to take a more targeted approach to recruitment, particularly in respect of groups underrepresented in their organisation. This is common in sectors such as infrastructure and energy, where the workforce is predominantly male. The Equality Act contains provision relating to positive action, which in essence mean that it is not unlawful for an employer to take special measures aimed at alleviating disadvantage or under-representation experienced by people with a protected characteristic. Some examples of positive action are: placing job adverts to target particular groups; including statements in job adverts to encourage applications from under represented groups; or hosting open days to encourage under represented groups into a particular field. Positive action is a powerful tool when it comes to the race for talent when used correctly. However, employers need to be cautious, making sure that they understand what is meant by positive action, and importantly its legal limitations, so as not to cross the line into positive discrimination, which is unlawful.
Tech savy recruitment
We are seeing many employers exploring more tech savy ways to recruit, including an increased reliance on artificial intelligence tools. AI can be used to perform sifts of CVs and application forms or to search for prospective employees’ on social media using key phrases or terms. It can even perform automatic filtering of candidates through online assessments and tests. The use of AI does not come without risks. AI systems are only as good as the data and programming that informs decision-making. If this biased, consciously or not, the outputs will be biased. This is a legal risk but also an operational one, because it could exclude pools of talent.