FEATURE
HR & EMPLOYMENT
the right way Conduct an interview
Following an Employment Appeal Tribunal (EAT) decision involving a manager who had asked a candidate to marry him as part of an initial interview (yes, this really happened) Kelly Pashley-Handford, Human Resources Manager at Spencers Solicitors, considers some common pitfalls and best practice associated with recruiting new staff
DISCRIMINATION IN RECRUITMENT The Equality Act 2010 prohibits discrimination, harassment and victimisation in relation to any of the nine protected characteristics, namely: age, disability, marriage and civil partnership, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. In practical terms, unsurprisingly, this means that
employers must not discriminate at any stage of the recruitment process from advertising a position right through to offering, or deciding not to offer, a candidate a position. Common complaints to the Equality and Human Rights
Commission (EHRC) involve discriminatory language including employers actively advertising for ‘young’ or ‘mature’ candidates with no apparent rhyme or reason for this. Equally, many discrimination cases stem from inappropriate
questions posed as part of the interview process. To navigate these potential pitfalls, employers should
naturally exercise caution when drafting adverts by using neutral language and by focusing solely on the essential requirements for the role. Furthermore, employers should actively avoid asking questions relating to marital status, family commitments - including childcare arrangements and any plans to have children - age, health and disability as part of any interview process.
WHY IS IT SO IMPORTANT TO STEER AWAY FROM THESE AREAS? Information attained as a result of asking certain questions can increase the risk of discriminating against a candidate - whether deliberately or completely inadvertently - based on a protected characteristic. Not only does this increase the potential for a discrimination claim but it also reduces the likelihood of selecting the right candidate for the role. For example, in determining that a female candidate has
children, an employer could wrongly infer that such family commitments could have a negative impact on the candidate’s attendance or commitment to the role which could influence the selection decision, irrespective of whether the candidate is the right choice for the role. In addition, as such discriminatory assumptions would not necessarily be made in respect of a male candidate, the female candidate could have a potential discrimination claim on the ground of sex. Ultimately, if a candidate feels that they have been
subjected to questions that have an underlying discriminatory impact, or that they have been treated less favourably because of a protected characteristic, the employer involved could face a complaint of unlawful discrimination at an employment tribunal.
ARE THERE ANY EXCEPTIONS? There are circumstances when there will be a legitimate reason to ask questions relating to a protected characteristic. For example, while it’s not generally permissible to ask about
44 business network September 2017
Asking candidates certain questions is a pitfall to be avoided
a candidate’s health, an employer may be able to ask health- related questions to establish whether or not candidates can carry out the role in circumstances where a job requires a certain level of fitness or good health.
ARE THERE ANY OTHER AREAS EMPLOYERS SHOULD BE AWARE OF? Guidance issued by ACAS recently suggests that another common pitfall in recruitment procedures relates to ‘unconscious bias’, whereby interviewers inadvertently favour candidates who conform to their own image, background or values. In practice, this can unfairly influence recruitment decisions and it’s certainly something to be mindful of as part of any recruitment process.
WHAT STEPS CAN AN EMPLOYER TAKE TO ENSURE COMPLIANCE AND BEST PRACTICE IN RECRUITMENT? There are several measures employers can adopt to help navigate potential recruitment pitfalls, including: • Preparing accurate job descriptions complete with both essential and desirable criteria to reflect the requirements of the role. This document should provide the basis for any recruitment decisions.
• Ensuring (wherever possible) that more than one person is involved in the recruitment process to provide a second opinion to help avoid unconscious bias.
• Using standardised interview questions tailored specifically to the position and role requirements.
• Recording interview notes and scoring candidates fairly against the role specification.
• Ensuring anyone responsible for conducting interviews is fully trained on interviewing, equality and diversity principles.
‘Employers should naturally exercise caution when drafting adverts by using neutral language and by focusing solely on the essential requirements for the role’
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