Discrimination at the workplace is a serious offense, but did you realize that claims could be brought against a company as early as the recruitment process? Liability for discrimination claims can cost a fortune, so your best defense is to prevent any form of discrimination and seek professional advice regarding the complexities of the law.
Mistakes made during the recruitment process can have lingering effects for your company and potentially cost you thousands of pounds. Unfortunately, it is rather common to make mistakes when –
- Defining the job and the role of the job holder
- Advertising the job
- Describing the requirements for the job
- Conducting candidate assessments
- The actual employment of the candidate
Should you discriminate during this process, your new hire might be unsuited for the role, and you run the risk of a candidate who was not hired to file a complaint with the Employment Tribunal. If it is decided that discrimination under the Equality Act 2010 during the recruitment process did occur, you may be held liable for projected future losses, actual losses, and “injury to feelings” compensation.
Equality Act 2010
The Equality Act 2010 defines the protected characteristics that cannot be used in the consideration of candidate for a job. These protected characteristics include, civil partnership, marriage, maternity, gender reassignment, race, sexual orientation, disability, age, sex, belief, religion, and pregnancy.
There are four types of discrimination that can occur if a job candidate is not hired due to a protected characteristic. These include –
- Perceptive discrimination – when someone is discriminated against because of a presumed protected characteristic
- Associative discrimination – when someone who associates with someone else with a protected characteristic is discriminated against
- Indirect discrimination – when a policy, practice, or condition in your company creates a disadvantage for someone with a protected characteristic
- Direct discrimination – when a candidate is overlooked or not hired because of a protected characteristic
Simply put, anytime a job criterion excludes a group or individual, especially because of a protected characteristic, a business risks discrimination charges.
Indirect discrimination can be a little more complicated to understand, yet easier to commit and can include –
- Requesting information from some applicants and not others, such as asking women about plans for children, but not asking men the same thing
- Irrelevant assessments, such as requiring applicants to take test assessments that aren’t relevant to the job applied for and could exclude an applicant
- Having candidates perform different tests for the same job
- Establishing criteria in the job description that is not warranted and would exclude groups or individuals
Should your company be accused of discrimination and brought before the Employment Tribunal, the court will examine the case specifics compared with your business needs and practices. Should there be a discrepancy between the two, discrimination would be considered.
There are some circumstances that legally allow for a certain protected characteristics to be considered in the decision process regarding recruitment. Allowable Genuine Occupational Reasons (GOR) are limited to sex, age, sexual orientation, race, and religious beliefs. A GOR is not to be used in an effort to create a balanced workforce regarding religion, race, or gender, and an employer will need to prove how and why the GOR was used should any discrimination complaints be filed. Also, an employer is to review the need of a GOR each time that position is vacated.
Allowable Genuine Occupational Reasons include
- If the job would require physical contact with the opposite that could cause objection
- Physiology, such as if the position were a modeling job
- Jobs that specifically require a certain a person to be of a specific sex, as in a prison
- Jobs that would not be performed in the UK
- A job that would require the employee to live in premises that would not provide adequate privacy and the employer would not be able to secure facilities that would allow adequate privacy
- Personal services that require the position to filled by a certain sex to be able to provide the best service, as in personal, education, social, or welfare services
- An employer may believe that an employee needs to be of a specific religious belief to best perform the required duties. For example, a Catholic school might want Catholic teachers, or the religious needs of staff or patients might require a chaplain of a specific religious belief. In these types of cases, the employer may need to prove that the religious requirement is a GOR.
- In specific cases, such as a job that would require the employee to work in the Middle East, a GOR may be applicable as lesbian, gay, and bisexual sex is a criminal offense in Middle Eastern countries.
- GORs regarding age are limited, though should a company require a person to play a specific age in a movie, commercial, play, etc. then the GOR would be applicable.
- Where a being of a specific race would make the employee best suited to the needs and sensitivities of an ethnic group, including in an ethnic restaurant.
- Specific requirements or needs, such as for a modeling or acting job.
The Equality Act 2010, section 159 says that an employer is able to give someone with a protected characteristic special treatment as long as they have equal merit as other applicants and the special treatment allows the applicant to minimize or overcome a hardship or take part in an activity.
Disability is defined as a long term (12 or more months) physical or mental impairment that significantly affects the ability of an employee to manage their responsibilities.
According to the Equality Act 2010, employers are expected to reasonably accommodate individuals with a disability, and must not, without justification, treat employees or potential employees who have a disability less favourably. Justification would be that the employer did not, or could not have reasonably known, that the individual has a disability. The law directs employers to make reasonable accommodations for those who are disabled, and any person who believes they have been discriminated against because of a disability is to file a complaint with the Employment Tribunal.
Defining Reasonable Accommodations
The law expects employers to make reasonable accommodation or adjustments for a disabled individual provided the employer has the resources to do so, and those adjustments would have a positive impact on the individual’s ability to perform their duties. By example, reasonable adjustments might include –
- Providing special training
- Adjusting hours of work
- Offer flexible work times, adjusting for rehabilitation or treatment
- Obtain or modify equipment, manuals, instruction, and even premises
- Reassign specific duties
- Supply supervision and/or readers
Discrimination complaints are filed with the Employment Tribunal when a potential employee feels they were not interviewed or hired because of a protected characteristics including, civil partnership, marriage, gender reassignment, race, sexual orientation, disability, age, sex, belief, religion, or union membership or lack thereof.
Individuals who believe they have been discriminated against have three months from the date of the incident to file a complaint with the Tribunal, who will then consider the facts of the individual’s case and the practices of the employer.
To improve the quality of your staff, and to lower the risk of any type of discrimination, you should apply the follow procedures to your hiring practices –
- Create job descriptions that are clear and detail the activities of the jobs as well as any relevant and required qualities and skills. References to gender should not be used in the description.
- Avoid using descriptions that may imply a preference for a gender
- Avoid placing the ad in places where it will only be seen by one demographic
- Selection tests must be relevant and the same test must be giving to all applicants
- Do not ask potentially discriminating questions during the selection process
- Though you are able to ask candidates if any adjustments would be needed to their work schedule, avoid questioning the candidates state of health or similarly invasive questions, such as the number of days they missed work during the past year
- Do consider making your workplace more accessible or accommodating to those with disabilities, such as adding a wheelchair ramp and whether the application process should be changed
- Documentation of all applicants, the interviews, your decision, and the employees performance and assessments should be kept for a suitable amount of time, as they will be needed should the employee file a complaint to the Employment Tribunal
Original recruitment article written by Tiffin Green, chartered certified accountants.
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