The do's and don't of recruitment and pre-employment checks

Anti-discrimination legislation applies not just to employees but also to job applicants, so care must be taken during the interview process not to ask inappropriate questions. Solicitor Emilie Bennetts explains

THE PROBLEM
Recruitment can be an expensive and time-consuming process. Now even greater care must be taken during the course of finding a new employee to avoid certain legal risks that can arise.

THE LAW
Employers must ensure that there is no unlawful discrimination in the recruitment process, when deciding whether or not to make a job offer, or in relation to the terms of employment offered. The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

A job applicant can bring a claim against a potential employer for:

â- Discrimination by the employer in the terms of employment offered;

â- Discrimination as a result of a refusal or a deliberate failure to offer employment; and

â- Harassment.

In addition, for the first time, the Equality Act specifically prevents employers from asking job candidates questions about their health, unless the question is asked in order to make reasonable adjustments to the recruitment process or to establish if the applicant can carry out a function that is intrinsic to the work concerned - in which case, a very clear job description is advisable.

Questions posed as part of diversity monitoring are allowed, but it is advisable to ask applicants for this information in a separate, anonymised document.

Discrimination because of a protected characteristic may be lawful if the characteristic is an occupational requirement of the role. This is particularly relevant in the case of restaurant businesses that may wish to recruit employees of a particular race in order to maintain authenticity. The occupational requirement exception should be used with caution because it must be shown to be a proportionate means of achieving a legitimate aim.

EXPERT ADVICE
Before interview Before advertising a role it is advisable to draw up a detailed written job specification so that the employer can demonstrate an objective approach that was not influenced by unlawfully discriminatory considerations.

At interview When interviewing applicants, ensure that the panel does not ask any potentially discriminatory questions, such as questions asked of a female candidate that would not be asked of a man.

In a recent case, a hotel chain was ordered to pay £4,000 in compensation to a prospective female employee because of questions asked of her at interview which implied that she would not be able to hold down the job because she had children.

If an employer asks questions about a job applicant's health and subsequently decides not to give that applicant a job, the applicant might claim that the employer discriminated against them because of the disclosures they made. Asking such questions reverses the burden of proof, so that the obligation falls on the employer to prove that no unlawful discrimination took place.

Pre-employment checks Employers have a legal obligation to ensure that their employees have permission to work in the UK. An employer who asks employees to produce evidence of entitlement to work in the UK does not commit race discrimination if it asks the same question of all applicants at the relevant stage of the recruitment process and not just those from particular racial or nationality groups.

CHECK LIST
â- Ensure that employees involved in recruitment are appropriately trained, and document every step of the recruitment process.

â- Ensure that interview questions always relate to the requirements of the job. Social conversation at the beginning or end of the interview should be limited to avoid inappropriate questions about an applicant's private life.

â- Don't ask questions about an applicant's health unless one of the limited exceptions applies.

BEWARE!
Anti-discrimination legislation is not limited to protecting only employees, so it is crucial for employers to ensure that they have the appropriate training, policies and processes in place to ensure that unlawful discrimination against job applicants doesn't occur.

CONTACTEmilie Bennetts, solicitor,Charles Russellemilie.bennetts@charlesrussell.co.uk