Recruitment and Selection
THE Legal Aspect
Part 1. Introduction- the “Short List”
- The Employment Equality Act 1998-2015 prohibits discrimination in numerous areas.
- Unconscious bias can negatively influence employee selection strategies.
- Recruitment policies should ensure transparency and fairness throughout all stages.
- Fair and methodical hiring guidelines enhance workforce optimization.
- In advertisements for new staff and during interviews, you must not say anything that could be seen as discrimination against any prospective employee on grounds of sex, gender reassignment, race, colour, ethnic background, marital, civil or family status, disability, trade union membership and/or activity, age, religion/belief, political opinion, sexual orientation or membership of the traveller community.
- Keep detailed Notes.
Acceptable questions “the Do’s”
In the personal section of a job application form all the information sought should be uniform and relevant. It is accepted practice to require all applicants to supply:
- title
- surname
- forenames
- home address
- home telephone number
- mobile number
- whether or not they require a work permit
It is also acceptable to ask what reasonable adjustments are required for the candidate if they suffer from a disability or medical condition so that appropriate steps can be taken to assist the candidate at an interview.
Provided such questions are asked of both men and women, and the standards set in assessing replies are related to job requirements and not to assumptions about sex differences, they will do no harm and are a legitimate part of the selection process.
Due to age discrimination legislation, an employer is now not recommended to ask a candidate any questions relating to their age such as their date of birth or details of when they obtained any qualifications.
√ Check if there is a equal opportunities or recruitment policy in place that should be followed;
√ Read the CVs and/or application forms in advance;
√ Agree objective assessment criteria and a structured marking system in advance;
√ Prepare questions in advance of the interview identifying important aspects of the role:-
- Questions should be relevant and appropriate for the job requirements;
- Questions should be open and encourage discussion rather than closed questions which elicit a “yes” or “no” answer.
√ Ask all candidates the same questions and score their answers consistently (Supplementary questions can be asked to clarify or explore a candidate’s answer)
√ Treat all candidates the same
√ Brief panel members about their roles in the interview and agree who will ask which questions
√ Consider questions that the candidates are likely to ask, and prepare responses
√ Make arrangements for reasonable adjustments to be made in the conduct of the interview if it is known that a candidate has a disability
√ Retain notes of candidates’ answers and interview panel impressions of the candidate
√ Retain notes of decisions reached and reasons for those decisions as these will be important in the event of a candidate querying the selection decision, bearing in mind that the candidate may have access to such notes if a data access request is made
√ Agree the process for notifying candidates the results of the interview
Unacceptable questions “the Don’ts”
It is not acceptable to ask a question which could be directly or indirectly discriminatory. This includes questions such as ‘Are you heterosexual?’ or ‘Are you a Muslim?’ Sometimes a job will require an applicant of a particular sex, race, age, religion/belief or sexual orientation. So long as this is a genuine requirement or qualification for the job then it will not be unlawful to discriminate against certain sectors of society.
Please note that if you are considering employing new staff which would result in discriminating against certain sectors of society based on a genuine requirement or qualification for the job then you should take great care.
The Employment Equality Acts 1998 – 2008 outlaw asking questions relating to health or disability and the use of health questionnaires before a job offer is made, unless it is being used in order to:
- determine whether any reasonable adjustments need to be made for an applicant during a recruitment process
- determine whether an applicant can undertake a function that is vital (‘intrinsic’) to the job, such as enquiring about any mobility issues where the job entails handling heavy goods
- monitor diversity amongst the applicants, such as enquiring whether an applicant is disabled in order to establish whether advertisements are reaching disabled people
- take positive action to assist disabled people
- establish that the applicant has a disability where having a disability is an occupational requirement of the job
The Equality Act permit employers to make any offer of employment conditional upon receiving a satisfactory medical report/health questionnaire. Questions asking the applicant to disclose details of past health may not be acceptable under the Employment Equality Acts 1998 – 2008.
Do not ask any questions that might appear discriminatory on any of the nine discriminatory grounds. The nine discriminatory ground are:-
- gender;
- civil status;
- family status;
- age disability;
- sexual orientation;
- race;
- religion;
- membership of the Traveller community
Note anything that could be considered discriminatory e.g. “long period of sick leave” or “has a child” as it could raise inferences of discrimination.
Do not ask questions that are not relevant to the requirements of the job.
Do not engage in informal conversation, for the purpose of putting the candidate at ease, that may inadvertently lead into any of the 9 discriminatory grounds.
Do not ask a candidate his or her age or whether a candidate can work with the latest technology at a particular speed.
Do not make assumptions about the candidate’s personal life or preferences on discriminatory grounds.
Do not make any specific promises about the job that the company cannot keep as they may be binding and lead to a claim for damages or breach of contract and/or misrepresentation.