30 October 2006

The recruitment process is all about getting the right people in the right jobs at the right time. But, get it wrong and you could attract the unwelcome attention of equality commissions and litigants or end up with an employee who is not quite what they appeared to be! How scary is that?

To avoid a fright you should start by drawing up a job description, listing the duties that will be undertaken and a person specification identifying the personal attributes required of the post holder. Use these to form the basis for your selection. Beware though of direct or indirect discrimination creeping in. You must not, for example, specify that the candidate be of a particular gender, race, sexual orientation, religion, or age unless this is a Genuine Occupational Requirement ("GOR") for the post. For example you can lawfully ask for a specific gender to preserve decency or privacy in jobs involving physical contact or where people may be in a state of undress or using sanitary facilities. Other GORs include providing welfare services to certain groups and for authentic purposes. To do otherwise is direct discrimination which cannot be justified, unless on the grounds of age when it might be.

Specifying criteria, which fewer candidates from any of the above categories can meet, could also amount to indirect discrimination. For example, requiring the position to be undertaken on a 9-5 basis is indirect sex discrimination as a larger proportion of women than men are unable to fulfil the requirement owing to childcare commitments. Similarly, expecting the post holder to possess 5 years’ experience will put younger candidates at a disadvantage and can amount to indirect age discrimination. In order to justify such discrimination you must be able to point to a legitimate business reason necessitating the requirement which outweighs the disadvantage to those individuals. Objective justification can be for reasons of health and safety or efficiency and may include economic factors, although costs should not be the used as the sole reason.

These same principles apply when you advertise the post. The words and images you use must not be discriminatory. Gender specific job titles, such as "salesman" or "waitress" should be substituted for a term which includes both men and women. Whilst you may want to create a more diverse workforce you must not ask for applicants of a particular sex, race or age only. This is unlawful positive discrimination. However, you can take positive action and state that you encourage applicants from those areas which are currently under represented in your organisation. Furthermore, when describing the type of person you are seeking do not use words which could give an impression of bias. Phrases such as "fit and healthy" may prejudice applicants with a disability and "mature" or "energetic" are synonymous with age.

The recruitment agency Robert Walters, has recently issued internal guidelines on words which it considers to be potentially discriminatory on the grounds of age and therefore in breach of the Employment Equality (Age) Regulations 2006, which came into force at the beginning of this month. Amongst the words that Robert Walters has banned the use of in their adverts are dynamic, ambitious, vibrant, quick-learner, self-starter, high-flyer and newly-qualified.

It is worth noting that, even when you do use an employment agency, the laws on discrimination still apply and agencies are unlikely to go on a witch hunt for you. As an employer it is unlawful for you to apply pressure or give instructions to discriminate on your behalf. Employment agencies can also be held liable if they follow any discriminatory instructions. To avoid liability the agency must have a statement from the client confirming that it is lawfully entitled to refuse to offer employment in the circumstances i.e. that a GOR existed, and the agency must have acted reasonably in deciding to rely on it.

Discriminatory adverts and unlawful instructions to recruitment agencies will send shivers down the spine of the Equal Opportunities Commission, the Disability Rights Commission and the Commission of Racial Equality all of whom have the power to issue proceedings. In October 2007 these powers will be transferred to the new Commission for Equality and Human Rights established under the Equality Act 2006. The nail in the coffin though, is the power of the employment tribunals to award unlimited compensation to a candidate who, having decided to apply for the post, is rejected on discriminatory grounds.

The recruitment process can be a game of trick or treat and unfortunately you can’t cast a spell to get it right. It takes time and preparation but, if you act fairly and base decisions on the objective needs of the post, you are less likely to have your actions come back to haunt you.