Discrimination in recruitment and selection

Employers need to be alert to the risks of, and take steps to avoid, unlawful discrimination at every stage during a recruitment exercise, including any risks posed by artificial intelligence (AI)-enabled tools.

Job applicants are protected against unlawful discrimination because of a protected characteristic under the Equality Act 2010.

The protected characteristics are:

Age

Disability

Gender reassignment

Marriage and civil partnership

Pregnancy and maternity

Race

Religion or belief

Sex and sexual orientation

The Act prohibits direct discrimination, indirect discrimination, harassment and victimisation.

In the recruitment context, s.39 of the Act makes it unlawful for an employer to discriminate, directly or indirectly, against a job applicant or to victimise that person:

in the arrangements it makes for deciding to whom to offer employment (for example, arrangements for interviews and assessments);

as to the terms on which it offers a job applicant employment; or

by not offering an individual employment.

Further, under s.60(A) of the Act, an employer may directly discriminate against an individual if the employer makes a discriminatory statement regarding recruitment, even if there is no active recruitment process underway and the individual is not personally affected by the statement.

The employer may also be liable if the discriminatory statement is made by a third party, if there are reasonable grounds for the public to believe that the third party could influence the employer's recruitment decision.

It is also unlawful for an employer to discriminate, directly or indirectly, against an existing employee, or to victimise that person in the way that it affords them access, or by not affording them access, to opportunities for promotion, transfer or training.

Some discrimination that occurs during the recruitment process may be unintentional. However, lack of intent is no defence to a claim of discrimination. If a job applicant experiences any form of discrimination during a recruitment process, the employer will be liable in law whether or not there is evidence of intent.

Direct discrimination arises where an employer treats a job applicant (or applicant for promotion) less favourably because of a protected characteristic. Specific examples of how direct discrimination might arise during the recruitment process include where an employer:

publishes a job advert with wording that suggests that applicants with a particular protected characteristic will be favoured or disadvantaged (for example using gender-related wording, e.g. "waiter" or "waitress");

includes questions in application forms that indicate an intention to discriminate, for example questions related to marital status, children and/or childcare responsibilities;

uses an algorithm to filter job applications which is trained on data that produces a biased outcome (for example using data predominantly trained on male employees that sifts out references to "women");

fails to allow job candidates to present their application in a format other than the employer's standard written application form (for example in Braille or audio format, which could make the application process more accessible to people with certain types of disability);

asks discriminatory questions at interview, for example about marital status or family commitments;

uses personal information about protected characteristics included on application forms to make recruitment decisions;

uses personal information about protected characteristics accessed via social media to assess the suitability of job candidates without a good reason for doing so (for example, where the information obtained from social media is not relevant to the requirements of the job);

discriminates in the arrangements that it makes for deciding to whom to offer employment by, for example, requiring an individual with a particular protected characteristic to undergo a more stringent selection process than those who do not have that characteristic; or

offers a position to an applicant with a particular protected characteristic on less generous terms than it would offer it to someone who does not have that protected characteristic.

Specific examples of how indirect discrimination might arise during the recruitment process include where an employer:

publishes a job advert indicating that job applicants must satisfy certain unjustifiable conditions, where applicants with a particular protected characteristic will have difficulty satisfying those conditions;

asks questions at interview focusing on criteria that applicants with a particular protected characteristic cannot meet, for example questions around length (rather than relevance or breadth) of experience, which may indicate that younger applicants will be disadvantaged;

discriminates in the arrangements that it makes for deciding to whom to offer employment by carrying out practices that disadvantage certain groups, for example by:

failing to advertise vacancies in a range of media to reach a wide audience (such as relying on social media for job advertising as older people may be less likely than younger people to use social media and may not access information about job opportunities as a result);

using automated video interviewing software to analyse performance at interview (for example analysing facial movements or voice data) which produces inaccurate results for applicants with particular protected characteristics; or

not accomodating the needs of people with a particular protected characteristic in the interview process

A maximum or minimum height requirement would be likely to be unlawful except in very specific circumstances.

A requirement that job applicants speak fluent English would have a discriminatory impact on people whose first language is not English. Unless there was a clear need, from a business perspective, for the jobholder to be fluent, as opposed to merely reasonably conversant in English, this would be indirectly discriminatory on racial grounds. (Specific rules apply to work in the in customer-facing roles.)

A policy that required staff to work on Sundays could discriminate indirectly against Christians, some of whom may feel strongly that Sunday must be respected as a day of rest. Similarly, a rigid rule that all employees must work a Saturday rota could discriminate indirectly against Jews and people of other faiths who celebrate Saturday as their Sabbath.

Employers that operate strict rules on dress and appearance including, for example, restrictions on clothing, hair length and jewellery could find that these provisions are indirectly discriminatory on grounds of religion unless they can be , for example on grounds of health and safety or hygiene.

A requirement that job applicants be "energetic" could place people with a condition that causes them to tire easily at a disadvantage and, if the job is largely sedentary, would not be justifiable. Similarly, a criterion of physical fitness would have to be shown to be necessary for the effective performance of the job.

Another example of potential indirect discrimination against job candidates with a disability could be requiring applicants to hold a driving licence as this would exclude people with certain medical conditions such as epilepsy or cerebral palsy, some of whom may be unable to hold a driving licence. Under s.20 of the Equality Act 2010 (the duty to make reasonable adjustments) the employer will, if it is reasonable, be under a duty to waive this requirement if the jobholder could, without too much expense or disruption, travel on business in some other way.

A requirement for job applicants to have a defined minimum number of years' experience would indirectly discriminate against younger candidates because younger people will be less likely than older people to have the requisite length of service. Unless necessary for the effective performance of the job, such a requirement would be unlawful.

A requirement for the jobholder to work overtime, be available to work at weekends or work shifts, as well as being potentially indirectly discriminatory on grounds of sex, could be age discriminatory. This is because such a requirement would indirectly discriminate against those with young children who, on the whole, tend to be younger candidates. Unless the requirement was necessary for the effective performance of the job, it would be unlawful.

Source

Manuela Grossmann