Some employers have a more casual attitude to recruitment procedures than they do to other people management practices such as discipline and grievance, or performance management. However, a recent case serves as a reminder that businesses must ensure that all of their recruitment activities comply with employment law to avoid being unable to defend the company against claims of discrimination in recruitment.
Case law
In Mohammed v Bloomsbury Bowling, the employer’s Head Chef asked Mr Mohammed to attend for interview after viewing his CV online. The CV in question did not include his date of birth or age. Mr Mohammed claimed that he was asked at the interview how old he was. When he replied that he was 40, the Head Chef said that he was under instruction by the General Manager to reject his application because he was too old.
Naturally, the company presented a different version of events. The Head Chef confirmed that he had interviewed Mr Mohammed but had doubts about his ability to work in a busy kitchen. He told Mr Mohammed at the end of the interview that he would not be offering him the job. The Head Chef admitted to making a joke about Mr Mohammed’s greying hair and the stress of working in kitchens but said that this was only to put him at ease. The company denied age discrimination.
In coming to a conclusion, the employment tribunal was not provided with documentary evidence in relation to the company’s recruitment procedures. It could not make a decision based on fact about whether the General Manager had or had not instructed the Head Chef not to appoint on the basis of age.
However, it did take note of the failure to provide a recruitment procedure, the comment about grey hair, the fact that the successful candidate was ten years younger and the contradictory evidence provided by the company. This moved the burden to the company to prove that discrimination in recruitment had not taken place.
Given that the company was not able to provide a satisfactory reason for Mr Mohammed being rejected and another candidate being appointed, the employment tribunal inferred that the company had discriminated on the basis of age. The company had failed to demonstrate an open and transparent recruitment process that would have helped to refute the inference of discrimination having taken place.
How to avoid discrimination in recruitment
In order to ensure that discrimination in recruitment doesn’t happen within your company, you should review your recruitment activities to ensure that they contain the following:
1. A written recruitment policy that expresses a commitment to equal opportunities, diversity and unfair recruitment practice
A comprehensive policy has to set best practice, implement minimum standards and establish the principle that candidates must be appointed on the basis of merit. It is also important to disseminate the policy throughout the company and ensure that everyone involved in recruitment understands why discrimination and unfair treatment must be avoided.
2. Job description and person specifications
Clear job descriptions and person specifications will help you to deide on the skills, knowledge and competencies you are looking for and will help you to decide on the questions you need to ask at interview.
3. Training for managers who recruit
A policy alone won’t ensure that managers follow appropriate procedures. It’s important that those who recruit within the company are trained in recruitment and potentially discriminatory practices. They should know which questions are effective, how to run interviews and what are effective listening and observation techniques so that the most skilled candidate on the interview list is appointed.
4. Cover the whole recruitment procedure
Discrimination doesn’t just occur in job interviews. It can happen right at the start of the recruitment process when the manager writes the job advertisement. The text should avoid any discriminatory language and focus on the competencies required. Companies sometimes experience problems because they have used words such as ‘energetic’, ‘mature’ or ’10 years’ experience’ in their job ads.
5. Good note taking and record keeping:
Interviewers who fail to take notes and document the basis on which they make their decision will struggle to defend the appointment if they are challenged. Best practice requires that interviewers establish objective selection criteria and score or assess each candidate in relation to those factors. This provides a clear explanation behind the appointment of a particular person over others who were interviewed.
6. A ban on unfair questions
There are a number of questions that should never be asked because they could be deemed to be discriminatory. These are in relation to age, marital or relationship status, children, religion, nationality, gender and disability. Basically, any subject that doesn’t relate to the skills and experience required for the post shouldn’t be on the question list.
(You can ask questions around disability if you are adopting positive action to recruit a disabled person, to find out if they need any support prior to interview or to assess adjustments to allow the person to meet the requirements of the job – but be careful!)
If you feel that your recruitment practices need to be improved, we can help by reviewing your policies and/or providing line manager training in effective recruitment. If you’d like to talk to our team of HR professionals about recruitment for your organisation, please contact us.
