Employer Branding Talent Acquisition

Tips for SMEs to Avoid Discrimination During Recruitment

Business success depends on employees. No matter how big or small your business, fairness in the workplace is vital and that includes during the recruitment process.

Discriminating during recruitment is illegal, and it doesn’t give your business the best chance of finding the most suitable person for the job. Consideration of equality and discrimination during recruitment creates a platform for hiring a more diverse workforce.

Businesses benefit from promoting diversity and inclusion. Companies offering an inclusive environment for a diverse mix of employees are more likely to outperform competitors.

Finding and keeping the right employees is a challenging process. Hiring the wrong employee is costly. While most employers are aware of equality legislation to protect workers in the workplace, many are less knowledgeable about the law to protect potential candidates during the application process.

This article offers tips and guidance to employers for a fair recruitment and selection process.

The law

While there is no single piece of legislation governing recruitment, there are a number of Acts dealing with the relationship between employer and employee, including during the recruitment process. The most significant piece of legislation is the Equality Act 2010. This piece of legislation protects people in the workplace (and in wider society) from discrimination.

According to employment lawyers at George Ide, pregnancy and maternity discrimination claims are among those most frequently heard at tribunals.

Often employers are unsure whether applicants are obliged to reveal their pregnancy during an interview. Female applicants don’t have to reveal that they are pregnant when applying for a job. If they do tell you (or it is obvious), the pregnancy should not be taken into account when deciding if they are suitable for the role.

Another emerging area of equality law is the discrimination of people undergoing gender reassignment. Any employer who discriminates against a job applicant (or employee) who has undergone, is going through or is proposing to undergo gender reassignment is acting unlawfully.

The Equality Act defines nine groups of characteristics that employers must not discriminate against. These are known as ‘protected characteristics.’

Protected characteristics

The nine protected characteristics covered by the Equality Act 2010 are:

  1. Age
  2. Disability
  3. Gender reassignment
  4. Marriage and civil partnership
  5. Pregnancy and maternity
  6. Race
  7. Religion or belief
  8. Sex
  9. Sexual Orientation

Types of discrimination

It is essential as an employer to understand how discrimination can happen. The four main forms of discrimination are:

  1. Direct discrimination: treating one person worse than another because of a protected characteristic
  2. Indirect discrimination: implementing a rule or policy which has a worse impact on someone with a protected characteristic
  3. Harassment: creating a hostile, degrading, humiliating or offensive environment for someone with a protected characteristic, including bullying behavior
  4. Victimization: treating people badly or unfairly who have made a claim or have supported a complaint under the Equality Act

For more information on the basics of equality and discrimination, see the ACAS guide here.

Identifying the vacancy and what you say in your job advert

As an employer it is important you are objective when selecting skills for a potential job vacancy and ensure they can be fulfilled by people from different backgrounds. Be specific with the skills required for the job. It can be deemed discriminatory if you use job titles such as shop girl or use words such as mature, active or energetic.

Explain which skills are essential and which are desirable. Ask for skills rather than directly stating a number of years’ experience, as this discriminates against younger applicants.

If you are asking for minimum qualifications, consider if they are relevant to the job. Where qualifications are relevant, add the words ‘or equivalent’ to avoid indirect discrimination.

Consider if the role needs to be full-time or if you can be flexible around hours to open up an opportunity to a wider group of people.

Where you advertise

Whatever medium you intend to use to advertise your job vacancy, you need to be aware that targeted advertising could contravene equality in employment law. Also, just because you are using a recruitment agency, it doesn’t mean you are necessarily compliant with the law regarding discrimination during recruitment.

There are lots of rules around writing job adverts. Where you advertise may inadvertently cause discrimination. If your recruitment advertising is targeted at men’s magazines, for example, this indirectly discriminates against women.

Advertise across a broad range of publications and online job boards so that your advertisement reaches a wider range of people.

Questions you can’t ask potential candidates

You can’t ask candidates about protected characteristics, including whether they are married, single or in a civil partnership. You can’t ask for a date of birth (unless the person needs to be a certain age, such as being eighteen to sell alcohol). You can’t ask if they have any children or plan to have children. And you can only ask about health or disability if:

  • It is essential for the job (i.e., there are requirements of the role that can’t be met with reasonable adjustments)
  • You are enquiring whether someone needs help to take part in a selection test or interview
  • You are using positive action to recruit a disabled person

Hiring disabled staff

The most common form of discrimination employers make is in failing to make reasonable adjustments for disabled people. Reasonable adjustments to support disabled people means enabling disabled people to overcome any significant disadvantages they may encounter in applying for jobs and attending interviews (as well as in the workplace).

As an employer, you have the right to inquire about a person’s health and disability, but there are limits in the interview stage as to what you can ask. See government guidelines on employing disabled people and people with health conditions here.

For more information on reasonable adjustments see government guidelines here. And for more details on disability discrimination, read the ACAS guide here.

Diversity and inclusion in the workplace matters. Diverse teams offer greater innovation and creativity, and they perform better. Inclusivity is helping to reduce the gender pay gap and is contributing to the stamping out of discrimination in the workplace. The question to ask yourself is, what kind of employer do you want to be?

About the author: Mike James is an experienced business writer specializing in HR, tech, and cybersecurity. On the latter, he has contributed to many of the leading publications both online and in print – such as StaySafeOnline, GlobalSign, Tech London and more.

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