Rejecting an unsuccessful job applicant should be pretty straightforward, but if it’s done illegally it can be costly.
If the candidate believes they were unfairly refused a role as a result of discrimination, they can make a claim to an employment tribunal.
It is crucial therefore for an employer to ensure its recruitment process is fair in order to avoid any such claims, and to be able to demonstrate that it has been reasonable if challenged.
Earlier this year Premier League football club West Ham United reportedly sacked its head of player recruitment when he allegedly said he would not sign certain players because of their race (1).
Allegations of discrimination during recruitment are said to be on the increase. The rise is thought to be caused in many instances by the high number of applicants for vacancies and unsuccessful candidates annoyed at having failed to secure the job.
There are number of grounds covered by the Equality Act 2010, that are known as protected characteristics, on which a discrimination claim can be made(2)
Those characteristics are disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation and age.
In October it was reported that a 67-year old man made a successful claim for age discrimination when he was rejected for a job as a park keeper. One of the interviewers was reported as saying “I’ve just noticed how old you are” before enquiring about the candidate’s health(3). The tribunal found the employer guilty of discrimination.
So, the key question is what can be done to prevent such claims?
It may seem obvious, but the wording of a job advertisement should be carefully considered. ACAS advise that care should be taken in the language used, which should be non-discriminatory (4)
Phrases such as ‘requires a minimum of 4 GCSEs’ can be considered discriminatory against older people who left school prior to the GCSE exam being introduced in 1988. While gender specific wording such as saleswoman, waitress, barman and handyman, for instance, implies that the job is only available to one or the other sex.
If there is any uncertainty, employers should keep detailed notes of interviews and other non-discriminatory aspects that were instrumental in the decision made. If it is later challenged this can help to demonstrate and support a rebuttal that the process was fair and reasonable.
It can also helpful for employers to draw up a clear and recognised recruitment policy. It will not only help an organisation to avoid discrimination at this stage, but also help it to be able to show that every effort has been made to treat all applicants equally and fairly.
There are different types of discrimination (5) which include, but are not limited to, the following:
Direct discrimination – when an individual is treated less favourably than another because of a protected characteristic.
Indirect discrimination – can occur when there is a rule, policy or even a practice that applies to everyone but particularly disadvantages people who share a protected characteristic.
Perception discrimination - is direct discrimination because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
Harassment – is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
The need to ensure the recruitment process is fair is highlighted by an old case where a serial job applicant was said to make a living out of applying for jobs and then claiming discrimination when rejected (6)
The government provides a range of advice and guidance on avoiding discrimination during recruitment. It covers topics such as discrimination in job adverts and questions you cannot ask when recruiting(7)
2. Protected characteristics [Internet] Equality human rights.com [cited Dec2018] Available from: https://www.equalityhumanrights.com/en/equality-act/protected-characteristics
3. A 67-year-old man turned down for a park keeper's job with a South Wales council [internet] [cited Dec 2018] available from:https://www.walesonline.co.uk/news/wales-news/67-year-old-who-wanted-1529325
5. What are the different types of discrimination [Internet].[Citizens Advice]. [Cited Dec 2018] Available from:https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/
6. Accountant accused 22 firms of ageism after being rejected for graduate jobs[Internet].The Telegraph.[Cited Dec 2018]. Avalible from:https://www.telegraph.co.uk/news/uknews/law-and- order/3522688/Accountant-accused-22-firms-of-ageism-after-being-rejected-for-graduate-jobs.html
7. Discrimination during recruitment. [Internet].Gov.uk.[Cited Dec 2018].Available from:https://www.gov.uk/employer-preventing-discrimination/recruitment
“A reputation built on success”
For free employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611