Employers are subject to obligations under the various strands of discrimination legislation to ensure that there is no discrimination in the recruitment process, when deciding whether or not to make an offer of employment to a particular applicant, and in relation to the terms of employment offered. The current strands of unlawful discrimination are race, colour, nationality, ethnic or national origin, sex, disability, age, religion/belief, sexual orientation, gender re-assignment, marital or civil partner status and trade union membership. It is also unlawful to discriminate against staff on the grounds of fixed-term or part-time status.
A job applicant can bring a claim against a potential employer for discrimination in the arrangements made for recruitment, discrimination in the terms of employment offered, discrimination as a result of a refusal or a deliberate failure to offer employment, and harassment.
An employer is vicariously liable for the acts of its employees, which includes liability for discriminatory behaviour by employees in the course of their employment unless the employer can show that it took all reasonable steps to prevent the discrimination.
This means that the employer will be liable for the actions of staff carrrying out the recruiting, so it is important that those responsible for recruitment are adequately trained in good recruitment practice, in particular, in relation to equal opportunites.
Before advertising the role, it is advisable for an employer to draw up a detailed written job description. This will focus the employer's mind on the skills and experience required. Also, by documenting those requirements, the employer can show its objective approach to recruitment.
Employers should think carefully about wording of job adverts and avoid inappropriate wording which could give rise to the risk of discrimination claims. Adverts should ensure they refer to the real requirements of the role and review the language used. Employers should avoid presenting men, women, disabled people or those from particular ethnic backgrounds in stereotypical ways. Employers should also state that they are, or are working towrads being, an equal opportunities employer.
Employers should advertise the role across a range of medium to ensure that they reach a sufficiently wide range of potential candidates.
It is advisable to use a standard application form so that all applicants are competing at an equal level. The application form can require job applicants to demonstrate how their skills and experience match the specification for the position.
Employers are likely to keep personal data about candidates (either in a computer system or in paper form), so this gives rise to data protection issues. To comply with their obligations, employers must make applicants aware of this policy, which can be done via a statement in the job advert, and they must also be told the reason for the policy and for how long their information will be held.
The employer must have objective selection criteria, based on the actual requirements of the position, to apply to the job applicants. Using a written job specification and person specification should create a level playing field for candidates and assist the employer in resisting allegations of unlawful discrimination in the recruitment process and in the final selection as to which applicant gets the job. The selection citeria should be applied at each stage of the process. If possible more than one person should be involved in the shortlist stages to ensure objectivity.
Where, when and how an interview is arranged or conducted may give rise to access issues under the Disability Discrimination Act ("DDA"), on the basis that the interview will be an "arrangement" for the purposes of section 4(1)(a) of the DDA. The duty to consider reasonable adjustments will also apply in the interview process itself.
Employers should ensure that they document the recruitment process so that there is a paper trail in the event of any complaint or litigation. The paper trail should include the job description, selection criteria, notes of short-listing process, minutes of any interviews, any written tests and results, as well as any other relevant paperwork.
The employer needs to consider whether the offer letter will form part or all of the contractual terms or whether the employer intends to have a seperate more detailed contract of employment which the employee will sign when they start work. If the offer letter is to be superseded by a more detailed written contract of employment once the employee starts work, then the employer may wish to make the offer of employment conditional on the signing of the full contract.