How to avoid discrimination pitfalls

Discrimination can come in many forms, from gender to race and it is important employers understand how important anti-discrimination is in the recruitment process.

This month there have been reports of a case in America concerning a Muslim job applicant who was a refused a job in the popular Abercrombie and Fitch store because she wore a head scarf.

“This is just one in a multitude of stories that regularly reach the press in relation to alleged discrimination against job applicants – including stories about applicants with ‘foreign’ names having more success in obtaining interviews when they put a ‘British’ name on their CV,” said Amy Jones, senior solicitor in Employment Law at Thorntons Solicitors.

“The Equality Act 2010 protects against discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation (‘protected characteristics’).

“The act covers job applicants as well as employees and accordingly, employers could find themselves facing a claim from individuals they have had limited contact with.

“Employers of all sizes must, therefore, think carefully about their recruitment process and ensure that all steps are taken to eliminate discrimination.

“Jobs adverts must not be discriminatory and the wording used must be carefully considered.

“For example, advertising for ‘youthful and enthusiastic’ staff could arguably discriminate against older people, whilst advertising solely in Polish on a recruitment website could discriminate against groups who are not Polish.”

Furthermore, in response to accusations that the likes of Next were advertising vacancies in Poland but not in Britain, on January 5 new regulations came into force prohibiting employment agencies and employment businesses from advertising vacancies for jobs based in Britain exclusively in other EEA countries.

This is designed to ensure fair access to jobs for those based in Britain as well as abroad.

Amy said: “All staff should be aware of their duties under the act and know how to respond to questions regarding vacancies, eg. all applicants should be asked to submit CVs rather than only the ones the manager likes the look of.

“During any interview process, care must be taken as to the questions which an employer asks a prospective employee.

“It is unlawful for an employer to ask job applicants or their previous employers about their health until the applicant has been offered a job.

“However, it is acceptable to make the offer subject to a positive occupational health report and to ask questions regarding a function that is necessary for the job.

“For example, if you are recruiting for a stockroom assistant, it would be lawful to ask questions about an applicant’s ability to climb ladders, use equipment such as pallet trolleys and lift and carry potentially heavy boxes.”

Tips include:

Keep job adverts simple and stick to actual requirements only.

Do not ask health questions unless it relates to a requirement of the job and even then, be very careful.

Keep applicants’ personal details separate from the rest of the application form so those making a decision do not have details of protected characteristics. Do not ask an applicant’s age. Wherever possible, more than one person should be involved in assessing candidates.

Applicants should not be asked to provide photographs unless necessary.

Record scores and/or notes of the decision-making process which demonstrate why one candidate was picked over another. This will assist if an employer is called upon to justify their decision.

Individuals have three months less one day from an act of alleged discrimination to bring a claim in the employment tribunal. Therefore, we recommend employers keep the documentation from the recruitment process for at least four months.

Amy Jones of Thorntons Solicitors has essential advice on discrimination laws and how firms can keep to them.