Recruitment discrimination – a legal perspective

Danielle Ayres

By Danielle Ayres, specialist pregnancy, maternity and sex discrimination lawyer at Gorvins Solicitors

You’ve got the perfect CV, have researched the company, are certain that you have the skill set for the advertised position and feel fairly confident when you get the call to interview.

Yet even with such a full tick box at your disposal, that much longed-for job can still prove elusive.

For while issues of discrimination in the workplace are well documented, many job applicants don’t realise that unfair prejudice can happen further upstream at the recruitment stage.

And while it would be nice to think that most employers understand obvious no-go areas when asking questions of potential staff (‘so, having any more babies?’ is a bit of a giveaway) – there may be still issues of bias when it comes to shortlisting or selecting potential candidates.

The Equality Act 2010 makes discrimination on the grounds of certain protected characteristics – such as sex, race, age, disability, gender reassignment, pregnancy or religious belief – unlawful. And these rights protect not only existing employees but also potential ones too.

So how do you know if you`re a victim of recruitment discrimination?

Well, there are some questions you shouldn`t be asked during an interview, such as those relating to future family plans age, health and previous sickness absence.

If you do get asked anything like this, you can refuse to answer them. If you don’t want to give a ‘no comment’ response you could ask how the question relates to the role you’re applying for, or the reason why the question is being asked.

If you think you didn’t get the job because you fall into a ‘protected characteristic group’ , or as a result of an answer you gave relating to one of those characteristics, then you may have grounds to make an employment tribunal claim.

However, it’s also important that employers know how to protect themselves from claims of discrimination too.

So before a position is even advertised, make sure there is a clear recorded definition of the role as well as the criteria which the successful applicant must meet. If it requires specific hours or days or, say, a certain amount of physical strength then keep a recorded note of that.

And keep notes too, of those job applicants you reject so you have an accurate record of why they were unsuitable for the position.

During the interview itself, even where there is justification for a question to be asked, make sure it relates to the role and not the individual (ie why you can only employ people of a certain age or require specific hours).

Job interviews can be something of a lottery. With only one vacancy and several interviewees there has to be a way for employers to make a decision about the best person for the job. Equally rejected applicants have to understand that sometimes even the most capable candidates will be unsuccessful simply because of force of numbers.

However both employers and employees should realise recruitment discrimination is as unacceptable as prejudice in the workplace.

Hopefully being aware of the red flags should ensure the best man or woman gets the job.

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