What is discrimination?
The majority of interviewers are fair-minded people who simply want to find the right person for the job, and most applicants just want to do their best in the selection process. As you are not a person that discriminates you may feel you don’t need to read on, but are you sure that you are aware of the following:
You are such a competent interviewer that you are positive that you never ask discriminatory questions or make such comments?
All of your recruitment processes are fair and do not include any wording or criterion that could discriminate?
Others involved in the process are also fair-minded and aware of your company equal opportunities policy if you have one?
You are aware of both direct discrimination, which is often obvious and more easily identified, and the more difficult to identify indirect discrimination?
Discrimination can be against an individual because of whom they associate with, including friends and family?
It is unlawful to instruct or put pressure on others to discriminate?
Exactly what discrimination covers, which now includes:
- Sex, including marital status
- Race
- Disability
- Age
- Sexual orientation
- Religion or belief.
The Acts, Rules and Codes of Practice that govern discrimination are detailed and complex and cover people from the application stages through to and during employment and affect decisions on promotion, training, redundancies, in fact every aspect of employment. Human Resource practitioners in your company will be able to advise you on these and it is their responsibility to ensure that good practice is adhered to. If you are in a small business without the benefit of in-house experts, it is worth familiarising yourself with the legislation via the various government websites, and if there are areas that you are still unsure of then take professional advice.
Remember, the primary responsibility legally rests with each employer to ensure that there is no unlawful discrimination.
One of the points that the various codes of practice and guidelines relating to the above all state is that it is good practice for companies to have an Equal Opportunities Policy. This sets out the company’s approach to each of these and the methods they have in place to ensure that discrimination does not take place during the recruitment process and in the workplace. It is also recommended that applicants are monitored to ensure that your methods of sourcing candidates are producing applications from all backgrounds, ages, races and so on, and if this is not the case then you adapt your methods to encourage this.
Equal Opportunity Policies are usually set out by expert human resource practitioners and often there is not the expertise to devise these in-house, especially in smaller companies.
If you do not have such a policy, then work to the guidelines that opportunities for employment should be equally open to all eligible candidates, and selection should be based solely on merit. No applicant should be placed at a disadvantage by rules, requirements, conditions or practices that have a disproportionately adverse effect on his or her group.
Below is a guide on the types of discrimination there are, what you should be aware of in the recruitment process, some of the pitfalls and how to avoid them.
Discrimination legislation
In brief, there is legislation on each of the following:
Sex discrimination
The Sex Discrimination Act prohibits discrimination against men, as well as against women, and also requires that married people should not be treated less favourably than single people of the same sex.
It is unlawful to select candidates on the ground of sex except for certain jobs when a person’s sex is a genuine occupational qualification (known as GOQ) for that job. There are very few instances in which a job will qualify for a GOQ on the grounds of sex but these may arise, for example, where considerations of privacy and decency or authenticity are involved.
But beware, a GOQ will not be valid where members of the appropriate sex are already employed in sufficient numbers to meet the employer’s likely requirements without undue inconvenience.
In a job where sales assistants may be required to undertake changing room duties, it might not be lawful to claim a GOQ in respect of all the assistants on the grounds that any of them might be required to undertake changing room duties from time to time. The argument would be that at any one time there would be staff of the right sex to wait on customers in the changing room.
The Sex Discrimination Act also expressly states that the need of the job for strength and stamina does not justify restricting it to men.
A job for which a GOQ was used in the past should be re-examined if the post falls vacant again, to see whether the GOQ still applies. Circumstances may well have changed, rendering the GOQ inapplicable.
Race discrimination
The Race Relations Act makes it illegal to discriminate against, or harass, applicants for employment on the grounds of colour or nationality or ethnic, racial, or national group.
This discrimination could occur when an applicant is treated less favourably than another in similar relevant circumstances on the grounds of his or her colour, race, nationality, ethnic or national origins.
Indirect, but still illegal, discrimination can also occur because of these attributes in someone related to the candidate or associated with him or her.
In certain circumstances you can take positive action to attract applicants from groups that are under-represented in your work-force. If you think this is the case in your company, then take legal advice on whether you can use positive discrimination and how to do so in order to attract candidates from these groups.
Disability discrimination
The Disability Discrimination Act protects disabled people from discrimination in the workplace. The Act’s definition of a disabled person is one who ‘has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’.
Smaller companies used to be exempt from this Act but this is no longer the case and the Act now applies to companies regardless of how many employees they have.
Employers are also obliged to make ‘reasonable adjustments’ in order to allow disabled people to work. These include measures to ensure that a disabled job applicant is not at a disadvantage compared with an able-bodied person, and include adjustments to the workplace to accommodate a disabled person. The employer’s size and resources will be taken into account when judging whether adjustments are, or would be, ‘reasonable’.
There are a lot of assumptions and stereotypical ideas about disabled people, so do not assume that:
- Because a person does not look disabled, he / she is not disabled.
- Most disabled people use wheelchairs.
- People with learning disabilities cannot be valuable employees, or that they can only do low-status jobs.
- A person with a mental health problem cannot do a demanding job.
- All blind people read Braille or have guide dogs.
- All deaf people use sign language.
- Because a disabled person may have less employment experience (in paid employment) than a non-disabled person, they have less to offer.
The Disability Discrimination Act requires employers to think about ways of complying with their legal duties. Listening carefully to disabled people and finding out what they want will help employers to meet their obligations by identifying the best way of meeting disabled people’s needs.
These discussions should take place early on in the recruitment process. Discussing with disabled people what is required to meet their needs will reassure an employer that suitable adjustments can be carried out cheaply and with very little inconvenience.
Age discrimination
The Employment Equality (Age) Regulations make it unlawful to discriminate against job applicants because of their age. Even if you do not know the applicant’s actual age, discrimination can be claimed to have taken place if your decision is based on your perceived age of the applicant.
Ensure that you take off any age-related questions on application forms or other literature and avoid age-related questions or comments during the interview.
Sexual orientation
The Employment Equality (Sexual Orientation) Regulations make it illegal to discriminate on grounds of orientation towards persons of the same sex (lesbians and gays), the opposite sex (heterosexuals) and the same and opposite sex (bisexuals).
These regulations also cover discrimination on the grounds of perceived as well as actual sexual orientation, and being discriminated against on grounds of the sexual orientation of those you associate with, such as friends and family.
Religion or belief
The Employment Equality (Religion or Belief) Regulations relate to discrimination on the grounds of religion, religious belief or similar philosophical belief, and the definition of ‘religion or belief’ is defined as any religion, religious belief or similar philosophical belief.
You are not allowed to treat someone less favourably because of your own religion or belief.
This also covers discrimination in relation to perceived religion, assuming correctly or incorrectly that someone has a particular religion or belief, as well as actual religion or belief. These Regulations, like those covering sexual orientation and race, also cover being discriminated against on grounds of the religion or belief of those with whom you associate.
Direct and indirect discrimination
All of the Acts and Regulations covering discrimination include provisions for direct and indirect discrimination.
Direct discrimination is more obvious and more easily avoided. It can occur when an applicant is treated less favourably than another in a similar situation on the grounds of one of the above forms of discrimination. This can include actual or assumed facts.
Assumed facts for example can include treating someone unfairly because of their age even though you do not actually know their age, or assuming someone is not British because they do not comply with your idea of a stereotypical British person. You cannot claim you were not discriminating because you didn’t know, because it may be proven that you were discriminating because you had assumed.
- Treating an applicant less favourably because they are, or appear to be, over fifty and you want to hire someone in their mid twenties because you have a young team.
- You have a shortlist of two candidates, one male and one female, and you hire the man for no other reason than you think he will have less time off because he is not responsible for children.
- You decide not to hire a disabled person because you do not want to get involved in having to adapt the equipment they need to use.
Indirect discrimination is more subtle but still illegal. It can occur if you put a criterion into your selection process that on the face of it may not appear discriminatory but that will put certain people at a disadvantage to others and you cannot justify the reason for it. It may apply equally to every applicant but it can only be met by a smaller proportion of people from a particular group.
This could be asking for fluent written English when there is no requirement or need for writing English in the job. This will prejudice non-native speakers and you cannot justify why you have asked for it.
How to avoid discrimination
All of the legislation has recommendations for how to avoid discrimination during the selection process, most of which is common sense and by being aware of it you will be able to plan your recruitment fairly and in a non-discriminatory way.
- Plan your recruitment process so that it is fair to everyone.
- Use the same recruitment process for everyone.
- Give all applicants the same information.
- Do not make assumptions or stereotypes (for example that only men can do certain manual jobs, or people of a certain age may not be capable of learning new computer systems).
- Treat all applicants in the same way.
- Ensure that all applications are processed in the same way whether they are from men or women, age groups, etc.
- Ensure the duties and tasks that are in the job specification are necessary to complete the job satisfactorily.
- Ensure any selection criteria are fair and not prejudiced against any particular group of applicants.
- Make sure others involved in the recruitment process understand the company policies on discrimination, and provide training if needed to ensure their judgements are objective.
- Plan your interview.
- Do not ask questions that you would not expect to be asked or want to answer yourself.
- Avoid discriminatory comments even if they are meant harmlessly.
- Base your decisions about recruitment on the skills required to do the job.
- Keep records of interviews, where practicable, showing why applicants were or were not appointed.
Identifying the needs of the business – job specifications
The various regulations and codes of practice recommend that employers prepare a job specification for any vacant post.
As we discussed in Chapter 1, the job specification is a useful tool in the recruitment process and by ensuring that it is written in a non-discriminatory way it will help ensure that you do not discriminate when you are selecting and hiring new employees.
Once you have compiled your job specification, re-read it to make sure it is not discriminatory and ask yourself the following:
Is it written plainly in English (or Welsh in Wales)?
Is it jargon-free?
Is each duty or task on the specification necessary to complete the job satisfactorily?
Are you able to justify each one as being necessary and that it does not overstate a duty, or the responsibilities attached to it? (If you include a task or duty that is not necessary or its relevance is overstated you could be discriminating against certain groups that cannot match that requirement and therefore it could be seen as discrimination.)
Have you made it as clear as possible what the job entails? To help with clarity it may be useful to describe the duties and the tasks a person would be expected to carry out over a certain period of time, for example an average working day / week / month.
Identifying the candidate – the candidate specification
In Chapter 2 we looked at drawing up a candidate or person specification describing the skills, knowledge, abilities, qualifications, and experience and qualities that are considered necessary or desirable in a candidate, in order to perform all the duties in the job specification satisfactorily. This is recommended to ensure candidates and those involved in the recruitment process are aware of what is needed to do the job.
To avoid claims that a candidate specification includes potentially discriminatory requirements, criteria or conditions, once you have written it ask yourself the following questions:
Have you included only the criteria needed to perform the duties in the job description satisfactorily?
Are the requirements at the right level? For example, by calling for ‘excellent knowledge of English’ when ‘good understanding’ is more appropriate.
Are the qualifications you have asked for necessary, appropriate and still current? Do not ask for higher qualifications than are actually needed to do the job satisfactorily.
Educational and vocational qualifications have changed and developed over the years, so is it clear that you will accept relevant alternatives? For example the recognised personnel qualification used to be the IPM (Institute of Personnel Management) but is now the CIPD (Chartered Institute of Personnel Diploma).
Have you made sure that the qualifications you specify are not disadvantaging people at different ages? Candidates over 50 are less likely to have a degree than younger candidates, because fewer people went to university at that time. Therefore by asking for a degree when it is not strictly necessary you may be prejudicing more mature candidates.
Are there other ways of specifying the skill level you require rather than through qualifications?
If you are going to be specific about qualifications can you justify their need in objective terms? That is, why do you want those specific qualifications?
Have you made it clear you will consider equivalent or similar level alternative qualifications?
Is it clear that degrees or diplomas obtained abroad are acceptable, if they are of an equivalent standard to UK qualifications?
If you have specified that you want a graduate, have you made it clear that you are interested in the qualification and not the age of the applicant? The term ‘graduate’ can be interpreted as code for someone in their early twenties but graduates can be almost any age.
Is the relative importance placed on each criterion, and whether it is essential or desirable, made clear?
As far as possible, are all the criteria capable of being tested objectively? This means avoiding vague or subjective qualities. Attributes such as ‘leadership’, which are widely used in the selection process, need to be precisely and objectively defined in terms of the measurable skills and qualities that contribute to it; for example, fairness, knowledge, diplomacy, imagination and decisiveness.
Have you avoided any terms that reflect personal preferences rather than justifiable requirements?
Have you reviewed any existing candidate specifications before using them again, to make sure the requirements and criteria applied are still relevant?
One of the best ways to ensure your candidate specification is not discriminatory is to have it checked and signed off by the person responsible for equal opportunities in the organisation, or in smaller companies this might be the director or owner.
Sourcing candidates
It makes sound business sense to attract a wide field of applicants – if you rely on the friends or family of current staff you will miss the opportunity to tap into the diverse skills of your local community and the wider market. It could also be seen as potentially discriminatory if you recruit solely, or in the first instance, on the basis of recommendations by existing staff, particularly when the workforce is wholly or predominantly from one racial group.
Advertising
It is unlawful to publish or order to be published an advertisement that indicates or might reasonably be understood as indicating an intention to discriminate unlawfully on any of the grounds outlined above.
If you are responsible for writing a recruitment advertisement, whether for a website, the press, a notice board, on your shop door or anywhere else, ask yourself the questions below and then rectify the ad accordingly:
Is your advertisement worded in such a way that it will encourage applicants from both sexes, all ages, all races, etc.?
Is it jargon-free and written in a way that everyone will understand?
Are you placing the advertisement in publications likely to reach all groups?
Are you advertising widely, fairly and openly so as to attract applicants from all backgrounds, age, race, etc.?
An advertisement placed only in a magazine aimed at young people may indirectly discriminate against older people because they are less likely to subscribe to the magazine and therefore less likely to find out about the vacancy and apply.
Have you reviewed all advertising material and accompanying literature relating to employment to ensure that it avoids discrimination, for example presenting men and women in stereotyped roles? As well as considering the language you use in adverts, think also about the hidden messages that may be present in any promotional literature that you have, particularly the pictures.
Has your Human Resources or Personnel Department approved the advert? They are the experts.
If you do not have in-house expertise have you got someone else to read it objectively to see if they can see any form of discrimination? (Make sure they are aware of what discrimination covers.) Publications can also be held liable for discriminating in what they publish, so ask for their advice.
Have you included a reference to your organisation’s equal opportunity policy, if you have one?
Have you written your job advert using the information in the job description and candidate specification?
Have you avoided using language that might imply that you would prefer someone of a certain age, such as ‘mature’, ‘young’ or ‘energetic’?
If you were an ordinary member of the public reading this advertisement, would you think it was discriminatory in any way?
Recruitment consultancies
You need to ensure that you are not briefing a recruitment consultancy in any way that may be discriminatory. If you have put together a job and candidate definition that you have ensured is not discriminatory, then use this to brief the agency. They are also bound by law to work in a totally non-discriminatory way and should refuse to accept instructions from you that counter this.
You should not make comments, spoken or written, that could be discriminating and you should avoid giving preferences where these are discriminatory even if you feel you have a valid reason for stating them.
The team you are recruiting for is predominantly women and you mention to your recruitment consultant that you would prefer to restore the balance by recruiting a man. As there is no justifiable reason for this, it is discriminatory.
Equally if the members of your team are all under 25 you may state that you would prefer someone of the same age so that they fit in better. Again, there is no justifiable reason for this and so it is discriminatory.
Your recruitment process
The arrangements made for deciding who should be offered a job, your recruitment process, should be fair to all applicants and should not discriminate in any way either directly or indirectly.
Ask yourself, does my recruitment procedure include the following?
Are the applicants all being given the same information?
Are they all going through the same process?
Are the other people involved in the selection process aware of what constitutes discrimination and what our policies are regarding this?
Is each individual being assessed according to his or her personal capability to carry out the job?
First and subsequent interviews
Up until the interview stage you can check and re-check what you are doing to ensure that it is not discriminatory. When conducting an interview you are on the spot, and if you ask a question or make an inappropriate remark it cannot be removed or re-worded.
As we saw in Chapter 5, by planning you can make sure that you get all the information you need to make an assessment of the candidate. Because planning helps you to focus on gathering the information it will also help to ensure you do not inadvertently ask or use discriminatory wording.
You can avoid some of the pitfalls by recognising areas that could be a potential problem.
You are recruiting a buyer who will have to do extensive and prolonged travel to the Far East so it is necessary to ensure the candidates are aware of this and that they can meet this requirement. Explain the situation and discuss it objectively. Ask if the candidate has any difficulties meeting this requirement. Do not ask questions based on assumptions about marital status, children and domestic obligations such as ‘Will you be able to arrange for someone to look after your children while you are away?’ Ask all the candidates the same question and not just those you know or think have other commitments such as children.
Points to follow are:
- Plan your interview to ensure that your questions relate to the requirements of the job.
- Try to have more than one person involved in the interviews to ensure that any personal preferences and prejudices are not allowed to affect the decision on whom to hire.
- Make sure that all interviewers are aware of what can constitute discrimination and how to avoid it.
- Avoid asking questions that can be discriminatory such as those related to age, for example, ‘How would you feel about managing older / younger people?’
- Avoid throw-away comments such as ‘You’re a bit young for a post of this responsibility’, or ‘Don’t you think someone like you should be looking for something with more responsibility?’
- Avoid any questions that could be discriminatory such as those about marriage plans or family intentions, as these could discriminate against women.
- Make your decisions about who to call back for the next interview or who to offer to, based on the applicants’ skills and competence.
- Check decisions for any bias. Before moving on to the next stage of the recruitment process, check that no bias, deliberate or unintentional, has influenced decisions. Ideally this check should be carried out by someone who has not been involved in the short-listing.
- Record your decisions and retain these records, ideally for 12 months from the date of the interviews.
Tests and practical tasks
If selection tests are used, they should be specifically related to job and / or career requirements and should measure an individual’s actual or inherent ability to do or train for the work or career.
Tests should be reviewed regularly to ensure that they remain relevant and free from any unjustifiable bias, either in content or in scoring mechanism.
Practical tasks should also be directly related to the job and be used to identify specific abilities such as presentation abilities, telephone skills, written skills, etc., only if they are necessary to complete the job satisfactorily.
The offer
The job offer is also covered by discrimination legislation and it is illegal to discriminate in any way in the terms of employment including the benefits, facilities or services offered. The most obvious example of this will be offering different levels of pay to men and women or offering a company car to one but not the other. It could include, for example, part-time work, domestic leave, company cars and benefits for dependants and should be available to both male and female employees in the same or similar role.
If you employ part-time workers where they do not enjoy prorata pay or benefits with full-time workers, the arrangements should be reviewed to ensure that they are justified without regard to sex.
Review all terms of employment, benefits, facilities and services to ensure that there is no unlawful discrimination.
- Be aware of what discrimination is and make sure others involved are also aware.
- Try to involve more than one person at each stage of the selection process.
- Make sure that your job and candidate specification include only tasks, duties and requirements necessary for the job.
- Treat all candidates equally and put them through the same process.
- Ask yourself at every stage if what you are doing, writing or saying could be adversely affecting certain groups and therefore discriminatory.
- Plan your interview so that you are asking relevant questions.
- Make sure that your salary and benefits package is the same for men and women.