Most employers and recruiters are well aware of the obvious no-nos when asking questions of potential recruits and would be offended at the suggestion that discrimination could play any part in their decision making. Overt discrimination, such as not hiring someone because of their gender, has become a lot less common over recent years. Having said this, in the UK Brexit has seen an unwelcome upsurge in nationality and race related harassment and unpleasantness generally in workplaces since the referendum result in June, and may well have already affected a number of hiring decisions in the months since.
Subconscious bias is still an issue in many businesses, and for that reason, in many recruitment processes. This means that whilst hiring decisions may not appear discriminatory on the face of them, the underlying reasons for the short listing and selection of candidates can still be tainted by discrimination as a result of in-built prejudices and preconceived ideas, as indeed can the process of identifying a job vacancy and its content in the first place.
Legal action
Applicants who are unsuccessful in a recruitment process have few avenues of legal redress – unless they believe that they have been subject to discrimination. Where this is the case, they are entitled at law to pursue a claim for discrimination and compensation, even though they have never worked for the employer in question. When doing so, they will typically refer to all aspects of the recruitment process which they consider to have disadvantaged them, in order to build a picture of the employer as generally discriminatory in approach.
The introduction next year of mandatory gender pay gap reporting, the focus on the progression of women to senior and board roles across all business sectors, and the continued pressure to address overall diversity, mean that many businesses are actively seeking to recruit a more diverse workforce with a composition and skillset that reflects society and better serves their customer base. To do this however, they need to be alive to the risks of discrimination that can arise at every stage during recruitment.
What do employers need to be watching out for when designing a recruitment process?
1. Preconceptions regarding the advertised role
Who is responsible for deciding the content of the advertised role? Is the job an existing position or newly created? If it is an existing job, is it being described in the way it always has been? Was it filled previously by a Monday to Friday 9-5.30pm male of a certain age? If so, what are the chances that it will be filled again by someone fitting the same spec? It is inherently tempting – and easy – to recruit replacements in the same mould as the departing employee.
If the job is a new position, is it being described in the same way as other existing jobs? Has any thought been given to how its design and description could attract job applicants with different skillsets and backgrounds – for example job share partners and those who prefer not to work full time, or who may not be able to do so as a result of caring and other responsibilities but who may well have significant experience in the field? Putting off or excluding these people from consideration may well mean ignoring the skillset and knowledge bank of women, those with caring responsibilities, or those of a particular age – all of whom have protection at law from discrimination.
2. Discriminatory ad language
It’s been well documented that the language of adverts and recruitment campaigns, as well as the visuals used –particularly where they purport to represent the make-up of the workforce, can powerfully reflect the underlying intention of the hiring business. Certain phrases and desired attributes are more likely to appeal in particular to one gender or another. For employers who genuinely wish to attract the widest pool possible, real care and attention should be paid to the way in which positions are advertised and depicted, so that applicants do not self-select out of the process from the start.
3. The risks of automated recruitment processes
Many businesses rely on recruitment portals to increase efficiency in the process – but such systems are not immune from discrimination risks – not least as they are invariably designed and programmed by humans, with their inbuilt biases and prejudices. Where the details requested from candidates and the system design do not allow for the realities of human careers – such as career gaps – to be taken into account, then the potential services of those who have taken family leave, had a career break for other reasons, or experienced a serious illness or disability, will be lost. The same applies where the system does not allow the applicant to offer any context around their application, or explain why they have the potential to do well in the role, despite not having some or all of the requested experience.
4. The interview and selection process – the risks
Many claims for discrimination at the job application stage succeed because employers are unable to defend their hiring decision – due often to a failure to take minutes of the interview, or to record the steps taken in the selection process. This is particularly important where the short-listing process means that a number of candidates are under review. Remembering in a tribunal hearing some months or years after the event, why a particular hiring decision was made can be difficult if not impossible without the benefit of notes. The lack of a written record also allows a claimant to argue that in the absence of any other non-discriminatory reason for their rejection, their race, gender or other protected characteristic must inevitably have been taken into account. This is also a good reason for always interviewing in pairs (at least) so that whilst one person asks questions, the other can be noting down the responses.
5. The job package
Many packages are designed taking into account a candidate’s salary expectations and hopes, which will inevitably be based to a degree on their current or past earnings. Given the on-going gender pay gap it is not unreasonable to assume that a woman will base her expectations on a salary package that may historically have been unfairly lower than a man’s in a comparable position in any event. Paying her only at her expected level simply because that is all she has asked for, rather than at the level the new role commands will perpetuate this problem and do nothing to address the on-going gender pay gap. Furthermore, it will store up potential pay gap reporting problems for the new employer in the future.
Whether recruiting decisions are made by people, or computers programmed by people, there will always be a risk that inherent biases and preconceptions will affect the decision making. However, with careful planning and thought, there is much that employers can do to address this risk up front – and recruit the right people to best service their business.
About the author: Marian Bloodworth is an Employment Partner at Kemp Little LLP.
