In the current war for talent, employers have to ensure their recruitment programmes are optimised to help select and attract the best candidates. But recruiting the right candidate for a vacant position can be a long and frustrating process. This process is also fraught with risk, not only in terms of finding the right fit for your business, but also in ensuring that your procedures are both fair and lawful. A poorly-run recruitment process could easily end in you defending a tribunal claim for unlawful discrimination.
The following guide provides recruitment tips so as not to fall foul of the law on equality. These tips will also help to ensure that you attract a diverse and inclusive pool of talent, with some of the best prospective employees, that other employers all too often overlook.
Recruitment tip 1: Watch your wording in job adverts
Under the Equality Act 2010, it is unlawful both to discriminate against existing employees and those seeking employment by reason of a protected characteristic. The protected characteristics include age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Whilst there is nothing in the Act that prevents you from hiring the best person for the job, it is unlawful to discriminate in any of the arrangements used to fill a vacancy because of any one of these nine characteristics, including the way in which you advertise a job role.
With certain limited exceptions, employers must not advertise a vacant position in such a way that is either directly or indirectly discriminatory. Direct discrimination will occur when you treat a potential job applicant less favourably than you treat others because of a protected characteristic. For example, if you placed an advert on your website offering jobs to ‘young graduates’, an older graduate who is put off applying for the post, even though they are eligible to do so, may be able to claim direct discrimination because of age.
In contrast, indirect discrimination can occur if you apply an apparently neutral provision, criterion or practice, but which puts applicants sharing a protected characteristic at a particular disadvantage. For example, asking for several years’ experience could amount to indirect discrimination because of age, unless this provision can be objectively justified.
Equally, you should not use job titles which suggest any form of predetermined bias for the recruitment of those with a particular characteristic. For example, job titles such as ‘waitress’ or ‘salesman’ may indicate a predetermination for a specific gender. Essentially, an advert must not include any wording that suggests you might indirectly discriminate against applicants of a particular sex, age or any other protected characteristic, unless the requirement can be objectively justified or an exception under the Act applies. This could include a strict occupational requirement, such as where a women’s-only refuge applies a job role requirement for all members of its staff to be women.
Recruitment tip 2: Avoid asking any discriminatory questions
At the interview stage, candidates should not be asked any questions that could indicate an intention to discriminate based on a protected characteristic, unless they concern an occupational requirement and are therefore strictly relevant to the job role.
Interview questions should relate directly to the job description and person specification, where questions like “Are you married?” or “Do you have children?” should be avoided, even in small talk. This is because these types of questions may lead to discussions about a protected characteristic or could be easily misconstrued as discriminatory by the applicant.
It is also unlawful, except for the purposes of establishing whether a disabled applicant needs some form of support within the recruitment process, to ask about any disability or health issues until an individual has been been offered a job, or included in a pool of successful candidates to be offered a job when a position becomes available. This includes any questions about previous sickness absence. Disabled applicants must be assessed objectively for their ability to do the job, and not rejected because of their disability.
By providing equal opportunities and diversity training for those responsible for the recruitment process can often help to reduce the risk that candidates will be asked inappropriate questions, and may also help interviewers recognise and mitigate the effects of their own unconscious biases. Unconscious bias is an expression used to describe assumptions that are outside of our conscious awareness, where an interviewer may have unintended preferences or prejudices towards certain candidates based on the associations with particular characteristics, such as gender, sexuality, age and ethnicity.
It can also be helpful to prepare a set of interview questions in advance, together with an objective scoring system to assess the candidate’s response. This can help to introduce a degree of standardisation, limiting the scope for any bias and discrimination. By conducting interviews on the basis of the agreed weight given to each criterion, you will ensure that each candidate is assessed objectively, and solely on their ability to do the job satisfactorily.
Recruitment tip 3: Take care when selecting a final candidate
An employer must never discriminate when selecting a final candidate. When conducting interviews, this is typically the stage at which it is easiest to make judgements about people based on instant, subjective and sometimes wholly irrelevant impressions. However, if a selection decision is based on prejudice and stereotypes, and not based on factors relating to the job description or person specification, this could lead to discrimination. For example, if you reject a candidate for being transgender, this is direct discrimination. Equally, rejecting someone because of their perceived gender reassignment, even if it turns out that this is not the case, this will still be direct discrimination by perception.
Direct discrimination will also be unlawful, regardless of your motive or intentions. Employers can often have prejudices that they do not even realise they have or may simply be acting out of good intentions. For example, if you do not recruit a female candidate because you are genuinely concerned about whether she would feel happy and comfortable working with an all-male team, although you may appear to be well-intentioned in your decision not to recruit that candidate, this is likely to amount to direct sex discrimination.
Importantly, once a final candidate has been selected, you must also not then go on to offer them employment on less favourable terms than you would any other successful candidate, because of a protected characteristic. The terms of employment include such things as pay, working hours and bonuses. For example, you must not offer a female candidate less money than a male candidate, simply because the successful candidate is a woman.
Recruitment tip 4: Differentiate between positive discrimination and positive action
Many employers want to increase diversity in their workforce, and whilst this is admirable, you should be careful not to practice positive discrimination, as this is unlawful under the 2010 Act. Positive discrimination involves giving preferential treatment to, or selecting a less suitable candidate, solely to benefit someone from a disadvantaged or under-represented group who shares a protected characteristic, in order to address inequality. For example, you cannot address the low participation of women partners in an LLP by interviewing all women regardless of whether they meet the criteria for partnership. This would be classed as positive discrimination and is therefore unlawful.
However, positive discrimination should not be confused with positive action, where you are permitted to take positive action to improve equality for people who share a protected characteristic and to increase workplace diversity. Positive action can be taken to help alleviate disadvantage experienced by groups sharing a protected characteristic, as well as action taken to increase their participation in the workforce where this is disproportionately low. For example, rather than interviewing candidates only from a certain ethnic minority group, you could target your advertising in media outlets likely to be accessed by this group. You could also make a statement in your advertisements that you welcome applications from this target group, as this would be a form of positive action to encourage participation. By taking positive action, this can also help to attract a wider pool of talent.
Recruitment tip 5: Make reasonable adjustments for disabled applicants
Under the Equality Act, all employers are required to take positive steps to ensure that disabled people can access employment. This goes beyond simply avoiding treating disabled job applicants unfavourably and means taking additional steps to which non-disabled applicants are not entitled. Specifically, you are under a statutory duty to make reasonable adjustments to remove any substantial disadvantage suffered by a disabled job applicant when applying for a job when compared with a non-disabled applicant.
The duty to make reasonable adjustments applies to employers of all sizes, although the question of what is reasonable may vary depending on your circumstances. For example, you may not be expected to make structural changes, such as widening a doorway, whereas providing a ramp or moving any furniture for a wheelchair user will be reasonable.
Other common examples of reasonable adjustments during the recruitment process could include modifying the format of a job advert or application form, such as producing these in Braille or audio format, as well as accepting job applications in different formats. It could also include adjusting the way in which someone is assessed, where presentations or multiple choice questionnaires may pose problems for some disabled applicants, or providing someone with a mental health condition extra time to complete an assessment. In all scenarios, you should be flexible and make adjustments where these are reasonable.
It is important to remember that there are restrictions on when disability or health-related enquiries can be made prior to making a job offer or including an applicant in a pool of people to be offered a job. However, you can still ask questions to determine whether any reasonable adjustments for an applicant need to be made to accommodate them in undertaking an assessment or attending an interview. For example, an application form can state: ‘Please contact us if you are disabled and need any adjustments for the interview’.
Recruitment tip 6: Advertise widely and be inclusive in your approach
Finally, when advertising for a vacancy, you should try and reach as many people as possible. Recruitment via word of mouth or through a restricted supply route, such as a single recruitment agency, can result in you recruiting from one demographic more than any other and can mean that your workforce is less diverse than it might otherwise be. Using a variety of methods such as online job boards, social media, newspapers, and other paper and online publications can help you to reach a larger, more diverse cross-section of the population. In turn, this will help to ensure that you are not indirectly discriminating against any specific group and give you access to a wider talent pool.
You may even be bold enough to consider adopting an open recruitment policy. Open recruitment is the practice of hiring on a first-in first-hired basis, where the first person to apply for an available position gets the job. When using this recruitment method, there will typically be no need for CVs and first or second-round interviews. As such, a person can be recruited for a job role, regardless of their education, qualifications or experience.
The principal behind an open recruitment policy is to provide those people who would ordinarily face unfair barriers to finding work with the opportunity to secure a job. This could apply to care leavers, single parents, those with a disability, or anyone else with a lack of work experience or a history of long-term unemployment. It could even include ex-convicts, recovering addicts and the homeless, which may not immediately cry out to you as a good idea, but there are very real benefits to approaching recruitment in this way.
The benefits of open recruitment include a bigger candidate pool than ever before, where the lack of job role requirements will open up your vacancy to thousands more applicants. In turn, by opening up vacancies to virtually everyone, this is likely to lead to greater diversity within your workplace, with candidates from every walk of life. This can also often lead to greater loyalty and better results, where staff recruited in this way are committed to working hard, going the extra mile to prove their worth, and are far less likely to leave.
Admittedly, there are various risks involved in adopting an open recruitment policy, including potential safety and security risks for other staff and even the public, if background checks or references have not been factored into the recruitment process. However, you can tailor your procedures to suit the needs of your business, to include carrying out certain checks and providing pre-employment training. You can also limit an open recruitment policy to entry-level positions that require little to no experience, helping you to fill these otherwise difficult positions in potentially record time — whilst tapping into a whole new reservoir of talent that could easily become some of your best employees.
DavidsonMorris’ specialist employment lawyers are experienced in advising employers on all aspects of recruitment, including guidance on how to ensure compliance with your legal obligations through the recruitment and onboarding process. Through our fixed-fee service Triple A, employers can gain access to unlimited employment law advice. For more information about Triple A, or how we can help your organisation, speak to us.
Recruitment tips FAQs
What are the tips for effective recruiting?
There are various recruitment tips that employers can follow when finding someone to fill a job role, not least by adopting a fair and inclusive approach to open up the talent pool. This will also help to avoid unlawful discrimination.
What are the 7 steps of recruitment?
The 7 steps of recruitment include writing the job advert, deciding where to advertise, screening applications and shortlisting applicants, interviewing and assessing those applicants, selecting a final candidate, offering them terms and conditions of employment, and onboarding your new employee.
Last updated: 10 December 2022