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Top Tips for Avoiding Discrimination in Recruitment

By Matthew Reymes Cole
01 Nov 2021
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Recruitment can be a costly and time-consuming business. It can also be litigious.

There’s legislation governing discrimination that employers need to be mindful of. Otherwise, you could face claims of unlawful discrimination. To avoid claims, judge job applicants against a range of objective criteria, such as:

  • Skills
  • Knowledge
  • Experience

You should not judge applicants based on personal factors. Before you even place a job ad, carefully prepare a job description and review your person specification. Remove any potentially discriminatory elements.

Shortlisting

Undertake shortlisting consistently. Use the objective criteria set out in the job description and person specification. Your decision not to shortlist an applicant can be challenged at an employment tribunal.

If an employee raises a claim against you, there are a couple of things you should know:

  1. There can be clear, non-discriminatory reasons for the non-selection.
  2. It is possible to successfully defend your case.

However, there is still significant risk if you choose not to shortlist candidates. The safest course of action is to follow a fair shortlisting process.

Interviews

Interview questions should relate to the requirements of the job. Present them clearly and objectively. A good tip is to prepare questions and topics for discussion in advance. Aim to cover similar areas of questioning for all candidates. Avoid discussing issues such as unsocial hours or mobility. Don’t discuss child care arrangements differently between men and women based on assumptions about child-care responsibilities.

Avoid asking questions that would require the applicant to disclose their age. Be aware of the risk of subjective biases and stereotyping affecting your judgment. Records should be kept of interviews. Maintain scoring/assessments of each applicant against the pre-determined criteria.

There is a duty to make reasonable adjustments for any candidate with a disability. For example, You could provide reading material in a large font to an applicant who has a visual impairment.

Making an Offer 

Once you’ve identified a suitable candidate, you need to make an offer. It’s up to you to decide whether the offer is conditional based on certain criteria, such as:

  • Satisfactory references
  • Certain qualifications
  • Checks such as DBS checks

The applicant must be able to provide documentation proving they have the legal right to work in the UK. They should provide you copies of these documents before they begin employment.

Probationary periods 

It’s standard practice for a new employee to work a probationary period. They offer the employer little legal protection today due to the way in which employment law has developed. However, the probationary period will indicate to the employee that they are to be monitored. There may also be an expectation of extra training and supervision to learn the job.

You can also use a probationary period to offer reduced terms and conditions. This includes limited benefits and a shorter notice period. However, you may not dismiss an employee more easily because statutory protection still applies. In many situations, unfair dismissal cannot be claimed by an employee unless they have the requisite service. This is two years’ service in England, Scotland and Wales—one years’ service in Northern Ireland. However, there are still plenty of instances where staff can claim unfair dismissal without that length of service.

Common claims are for asserting the employee’s statutory rights. This is usually under the Employment Rights Act 1996 or under the Working Time Regulations. However, it’s often easier to deal with the dismissal of an employee during a probationary period. This is because the employee knows that they are ‘on trial’. It’s important that review meetings are diarised before the probation period comes to an end. If employers have any concerns about terminating an individual’s employment, they should seek advice.

Expert support

For more information on shortlisting, interviewing and probationary periods, see our employment law services.

For immediate advice on recruitment or any other HR subject, speak to one of our experts today on 01455 858 132.

About the Author

Matthew Reymes-Cole

Matt joined Croner in 2007 as an employment law consultant and has advised clients of all sizes on all aspects of employment law. He has worked within management positions since 2017 and currently overseas a team within the litigation department, whilst continuing to support a number of clients directly.

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