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Avoiding legal pitfalls when recruiting

Published 13 September 2021

With a record number of jobs advertised getting recruitment right and ensuring the process is not discriminatory is crucial. 

Most recent official figures show that in May to July 2021, there were an estimated 953,000 job vacancies (1)  

That number is a record high, having grown by 43.8 per cent (290,000) compared with the previous quarter. 

With the current high demand for new staff, the task of picking the right person to fill a particular vacancy has never seemed more important 

When recruiting an employer will have a very clear idea of what it is looking for - but it is essential that every applicant is given a fair chance. 

Failing to do so will be in breach of the discrimination provisions of the Equality Act 2010 (2)  

All candidates and employees are protected in terms of discrimination against gender, sexuality, race, religion, marital status, pregnancy status, disability and age (3)  

Despite this, we have recently seen an employer getting it badly wrong in its bid to recruit a new member of staff. 

A football club came under fire over a job ad telling people not to bother applying if they have to pick up children from school a couple of times a week (4)  

The job posting is reported to have said the club works hard before adding ‘…don't apply if you are looking for a work-life balance or have to pick up the kids from school twice a week at 3.30.’ The discriminatory ad was later withdrawn. 

In recruitment terms discrimination occurs when an employer selects a candidate for any reason other than their qualifications and experience.  

Care should be taken at all stages of the recruitment process. Job adverts, application forms, person specifications and job descriptions should be written and presented in a neutral way. 

ACAS provides examples of recruitment ads that could be discriminating unfairly against protected characteristics (5)  

  • terms like 'recent graduate' or 'highly experienced' – these can discriminate against age (you must be able to prove you have a good reason for any job requirement in your advert) 
  • terms like 'barmaid' or 'handyman' – these can discriminate against someone's sex 
  • language requirements – 'German sales rep' could discriminate against race, so 'German-speaking sales rep' would be more appropriate 
  • clothing requirements, for example wearing a hairnet in a kitchen could discriminate against someone who for religious reasons covers their head in other ways 

When interviewing candidates, there are certain questions you cannot ask.  

Quizzing an applicant about their age, if they are planning to have children or whether they are married, can all be considered discriminatory. Asking questions about any of the protected criteria could break the law.  

When recruiting employers can take positive action, which is often confused with positive discrimination 

Positive discrimination, giving preferential treatment to people with a protected characteristic instead of their suitability, is illegal. While positive action, which is taking particular steps to improve equality, is allowed  

Under the Equality Act, you can take positive action to support those from under-represented groups, to help them overcome any disadvantage when competing with other applicants or applying for development and training (6)  

It is lawful to recruit or promote a candidate of equal merit to another candidate, if the employer reasonably thinks the candidate has a protected characteristic that is underrepresented in the workforce, or that people with that characteristic suffer a disadvantage connected to it.  

Some key steps to take to avoid discrimination in recruitment: be specific about the skills needed for the role and be objective when selecting skills, use language carefully in job ads, select interviewees based on the criteria and skills set and do not let personal bias affect decision making, interview fairly and effectively, offer the job objectively, record decisions and offer meaningful feedback to unsuccessful candidates. 

References 

1 Job vacancies, www.ons.gov.uk [Internet] https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/jobsandvacanciesintheuk/latest [cited 13.9.21] 

2 Equality Act 2010, www.legislation.gov.uk [Internet] 

https://www.legislation.gov.uk/ukpga/2010/15/contents [cited 13.9.21] 

3 What is discrimination/ www.eoc.org.uk [Internet] https://www.eoc.org.uk/what-is-discrimination/ [cited 13.9.21] 

4Discriminatory ad, https://uk.newsd.yahoo.com [Internet]https://uk.news.yahoo.com/afc-fyld-job-advert-general-manager-backlash-103146478.html [cited 13.9.21] 

5 How to advertise a job, www.acas.org.uk [Internet] https://www.acas.org.uk/hiring-someone/how-to-advertise-a-job [cited 13.9.21] 

6 Protected characteristics, https://www.acas.org.uk [Internet] https://www.acas.org.uk/employer-decision-protected-characteristic/helping-disadvantaged-group [cited 13.9.21] 

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