Clearly, your first priority in recruitment should be getting the best person for the job. However, it’s also important to ensure that your methods don’t leave you exposed to legal claims. Our practical guide will not just help keep you out of the Employment Tribunal but will also help ensure that you attract a broad range of talent and select the best candidate using a sound methodology.
The Wish List
Once a vacancy has been identified, most employers start the recruitment process by identifying the “wish list” of skills and attributes they are looking for. The wish list should form the main point of reference throughout the remainder of the recruitment process, so it’s important to get it right. Obviously, the starting point in developing the criteria will be the job itself but employers need to ensure that their list doesn’t unjustifiably exclude workers because of their gender, race, religion or sexual orientation or because of a disability. Some tips are:
* Consider carefully whether each criterion on the wish list is really needed for the job. Including criteria which are not justifiable will expose you to discrimination claims as well as potentially excluding worthwhile applicants. Requirements which are indirectly discriminatory unless objectively justified include:
(a) Length of service (women tend to have shorter uninterrupted periods of service because of childcare commitments);
(b) Full-time working (women are more likely to have child-care commitments); and
(c) Driving licence (81% of men but only 61% of women have a driving licence. This may also discriminate against workers with some types of disability).
* Avoid subjective or vague criteria like “attitude” or “cultural fit”.
* Don’t exclude different types of working (such as job share, part-time or home-based) unless it’s really necessary to do so, since the requirement to work full-time is likely to disadvantage women;
* Be open-minded about whether an applicant demonstrates the skills necessary for the job. Is sector experience really necessary?
* Be very sensitive to the use of language. For example, requiring candidates to be “lively and energetic” for a desk-based job may unjustifiably exclude disabled applicants.
* Use a range of recruitment methods: this is more likely to attract a diverse pool of applicants;
* Avoid informal methods of recruitment such as word of mouth, which tend to result in “cloning” whereby people recruit people like themselves. Cloning is the antithesis of diversity;
* Be careful about where adverts are placed. Advertising for a secretary or receptionist in magazines read mainly by women is not just stereotyping but is likely to discriminate against men.
* Avoid gender specific words such as “salesman”, “chairman”, “waitress”. Any images used should not suggest that disabled candidates or a particular gender or race would not be welcome; and
* If using an application form, ask only for relevant information based on your wish list (see above);
* Avoid asking for personal information – this could send the message that you intend to discriminate based on that information;
* Avoid being influenced by any irrelevant factors on a CV, such as marital status, nationality etc.
* Try to read all of the applications in one sitting and to cross-reference your wish list regularly;
* Take account of skills that candidates may have from outside work or from different sectors.
Once you have a shortlist, you naturally will want to give the candidates the “once-over” in person. However tempting, resist the impulse to form a snap judgment. Often “gut feeling” and “intuition” can be euphemisms for stereotyping and cloning (see above). Don’t rely on body language: it is hard to interpret accurately and, more importantly, is culturally specific. Above all, try to reach a reasoned decision based on evidence, by doing the following:
* Stay focussed on your wish list and ask questions designed to elicit evidence of these attributes. Avoid asking for personal information or information about domestic circumstances, race, ethnic origin, sexual orientation or nationality;
* Be careful about the questions you ask. Guidance is given below;
* Avoid interviewing alone: it is impossible to be entirely objective;
* Treat all candidates the same, including asking them the same questions. While minor deviations are not a problem, the overall format of the interview should be the same.
Questions To Avoid
* Do you have children? or How old are your children?
* Do you have a boyfriend? or Do you plan to get married? or Are you pregnant or Will you have any (more) children? or You wouldn’t ever want to work part-time would you?
* If you get this job, how will your children be cared for? or Do you pick up your children from school yourself?
* Have you ever worked for a female manager before? or How do you think you’ll manage in an all-male team? or We don’t have many of your type here – do you think you’ll fit in?
* Is English your mother tongue? or Do you have a British passport?
* What’s the matter with your leg/arm/eye/etc? or Why are you squinting? or How long have you had that limp?
* What religion are you? or Are you religious?
* Have you ever sued an employer? or Have you ever complained about discrimination?
Questions You Can Ask
* What do you do in your spare time? or What are your interests out of work?
* Where do you see yourself in five years’ time? or What are your personal goals inside and outside work?
* Are you able to be flexible about your working hours when necessary? or It will sometimes be necessary to work late – does that cause you any problem? or The job involves frequent business trips including foreign travel and overnight stays – does that cause you any difficulty?
* How many days off work did you take last year and for what reasons?
* Do you get on with different types of people? or What is your management style?
* What languages do you speak? or The job requires a high standard of written and spoken English, so we are asking all candidates to undertake a test (obviously, you can only say this if you do apply the test consistently).
* Are you permitted to work in the United Kingdom (this should be asked of all candidates and evidence of entitlement obtained in accordance with Home Office requirements)
* You’ve seen a copy of the job description, do you have any medical condition that might affect your ability to do the job? or Do you consider that any adjustment should be made to enable you to do this job? or What support would you need from us to enable you to do this job effectively? (These questions should be asked of all candidates)
* Do you have any special dietary needs that we should be aware of? or Do you need us to make any particular arrangements to accommodate your religion or beliefs? (both should only be asked after selection process is complete)
* Why are you leaving your current job? or How did you get on with your colleagues at your former job?
The Final Decision
As for earlier stages in the process, it is critical that your decision is based on evidence rather than assumptions and stereotypes. Not only will an objective and systematic approach identify the best candidate but will help ensure that you do not fall foul of the equality legislation. The following approach will help you stay on the straight and narrow:
* Two or more people who have been involved throughout the process should take the decision;
* Use all the evidence you have gathered to assess the candidates against your wish list;
* The selection mechanism should be either:
(a) Each selector makes an assessment separately and then they compare notes; or
(b) The selection team collectively goes through the process and arrives at a collaborative decision.
Documenting the Process
It is critical that each stage of the decision making process is properly documented. If it is not then, in the event that a claim is brought by an unsuccessful applicant, an employer’s ability to defend itself will be seriously undermined. This is because, in discrimination claims, the normal burden of proof is reversed and it is for the employer to demonstrate that it has not discriminated. It will be hard to do this in the absence of credible, contemporaneous notes explaining how it arrived at the recruitment decision.