It is important to avoid discrimination during the recruitment process. This not only is a legal requirement, but also gives you the best chance of getting the right person for the job.
Remember that job applicants – ie people you don’t actually employ – might be able to make an employment tribunal claim against you if they believe you didn’t select them for a job because you discriminated against them unlawfully.
Note that businesses in Northern Ireland with more than ten employees must conduct monitoring during recruitment.
Job descriptions and person specification
When writing the job description and person specification, you should state clearly what tasks the person will have to do and what skills they will need.
The specification should not have any requirements that are not directly related to the job. For example, for a position as a fork-lift truck driver, the job specification should not state that the successful candidate needs good written English as this is probably not essential – or even desirable – for the job. However, in an editorial or administrative role this can be specified.
It is unlawful for a job advertisement to specify that the applicant must be of a particular gender, race, etc – unless being of that gender, race, etc is a .
It is unlawful to publish job advertisements that imply that any candidate’s success depends to any extent on them not having, or not having had, a disability, or indicate the employer’s reluctance to make reasonable adjustments. In addition, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.
However, note that you can treat disabled people more favourably by advertising a job as being open only to disabled applicants.
To avoid age discrimination it is advisable not to use such phrases as “young and dynamic”, “would suit someone who has just qualified” or “minimum of ten years’ experience” as these may lead to age bias.
See the page in this guide on age discrimination or our guide on employing older workers.
Genuine occupational requirements/qualifications
In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is a genuine occupational qualification or requirement for the job.
For example, it may be possible to state that being:
- of Italian origin is a requirement for a job as a waiter in an Italian restaurant so that the restaurant has an ‘authentic’ Italian atmosphere
- heterosexual is a requirement for a job with a religious organisation because the religion’s believers object to gay and lesbian practices
If you use application forms, you should only ask for the minimum of personal details.
However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be shortlisted for interview.
If the applicant’s response reveals or suggests that they are disabled, you should confirm whether or not they are disabled under the Disability Discrimination Act 1995. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests.
It is not unlawful to ask candidates whether or not they are disabled and for their ages, ethnicities, etc on application forms. However, you should save such questions for a diversity monitoring form that you can separate from the main application.
When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership or plans to have children.
If a candidate has informed you in advance that they are disabled:
- you should ask them if there are any reasonable adjustments you might need to make to enable them to attend the interview
- during the interview, you should ask them if there are any reasonable adjustments you might need to make to enable them to do the job in question
Only ask questions that are relevant to the person’s to attend the interview or do the job. For example, if a job includes some telephone work you can ask whether the candidate has an impairment that affects their ability to use the telephone, or if they require any adjustments to enable them to use the telephone.
You should avoid asking any disability-related questions until after you have made the decision to employ a candidate if it is clear that they have a disability when they attend the interview.
You must make sure that tests for job applicants are not unlawfully discriminatory. For example, a written English test would discriminate against those whose first language is not English – although you could justify this if having good written English was necessary for the job.
You may have to make reasonable adjustments to adjust a test for a disabled applicant if they would otherwise be substantially disadvantaged compared to a non-disabled person, eg by giving them more time to complete it.
You could face a claim of unlawful discrimination if – because of their gender, race, etc – you were to select a man, white person, etc for a job who is less well qualified than other candidates who were female, black, etc.
This does not mean, however, that you must always select the best qualified person.
In the case where there is a disabled applicant, you can:
- choose to select the best qualified person for the job – regardless of whether or not they are disabled
- treat the disabled applicant more favourably by offering them the job because they are disabled – even though they are not the best qualified
You should document the recruitment process as much as possible. This will help you provide evidence to an employment tribunal if you are faced with a claim of unlawful discrimination.
Checking the right to work in the UK
You must be sure that your chosen candidate has the right to work in the UK – see our guide on ensuring your workers are eligible to work in the UK.
However, you must take care to avoid race discrimination while carrying out the necessary checks.
An employer must always be able to justify their decision in recruiting a particular person in case of an application to an employment tribunal. If the issue reached a tribunal, you would have to provide evidence showing how and why you reached your decision.
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