Remarkable as it sounds, a European Court of Justice (ECJ) case in late 2016 involved a German who applied for jobs in which he was not interested – see panel. He was only after the rejections which gave him an excuse to launch a discrimination claim that sought compensation. In ruling on the case, the ECJ said that discrimination law protection only applies where an individual has a genuine interest in the job they’re applying for.
Therefore, with job applicants becoming ever more savvy about their rights and employers more and more concerned about facing claims of discrimination or for compensation from unsuccessful applicants, what can they do reduce the likelihood that such a claim would succeed?
It seems easy
Recruiting a new employee seems relatively straightforward on the face of it – prepare a job description and person specification, advertise the vacancy, consider applications, invite applications for interview and make your selection. However, it can be very difficult to get the right person for the job, particularly when trying to protect your business and your reputation against the increased risk of litigation in relation to discrimination and equal opportunities.
The UK’s discrimination law provides protection to all job applicants from less favourable or unfavourable treatment because of any of the following: age; disability; gender reassignment; marital status or civil partnership; pregnancy or maternity; race, colour, nationality or ethnicity; religion or philosophical beliefs; sex (i.e. gender); or sexual orientation. These are known as ‘protected characteristics.’[wlm_nonmember][…]
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Job description and person specification
The job description is an important document in the application process and may help to protect against the risk of future disputes, provided that the applicant is made aware of what is expected from them from the start of their employment with you. To help prevent disputes arising at a later stage, the job description should be objective, identify the main purpose of the job and set out the specific tasks that need to be completed. You should avoid making assumptions as to how the role needs to be completed. For example, do not state that the role must be completed on a full-time basis if, in reality, it would be suited to part-time working or job-sharing as this could potentially be discriminatory.
The person specification is slightly different and this is where businesses commonly fall foul of discrimination laws. For example, stating that any applicant ‘must’ have a Passenger Carrying Vehicle licence and the Driver Certificate of Professional Competence, ‘and’ five years’ experience, is likely to be age discrimination. This is because any applicant who gained their licence less than five years ago, and so is likely to be younger than any applicant who passed more than five years ago, is not even going to be interviewed for the role, irrespective of how valuable and relevant their work experience has been since passing. This is where identifying ‘essential’ and ‘preferable’ criteria is useful. It might be essential, for example, that every applicant has the qualification, whilst it might be ‘preferable’ if, since passing they have worked in the environment that the employer covers.
Advertising
Your budget may have a bearing on how you choose to advertise a vacancy; you may decide to recruit internally, rely on word of mouth, use internet jobsites, through CBW and its online recruitment hub coachandbusjobs.com, or a recruitment agency. However, the methods that are less costly, i.e. relying on word of mouth and internal recruitment, increase the risk of a discrimination claim being pursued as you may find you have a very narrow group of potential applicants due to not letting the wider world know about the vacancy.
When preparing the wording of the advertisement, referring to the job description and person specification you have prepared will help reduce the risk of discriminatory language being used. To prevent mistakes being made inadvertently, have someone review the wording for you, preferably a member of human resources but, if not, someone from outside of the business to gauge what their first impression of the job advertisement is.
If you decide to use a recruitment agency, you should ensure that your instructions to the agency are clear and non-discriminatory. This is because you are still liable for the agency’s actions, to an extent, as instructing or knowingly helping an agency to commit an act of discrimination can result in you being found liable should a complaint be made.
Applications
It is recommended that, where possible, more than one person should be involved in considering applications to reduce the chances of discrimination arising. An objective assessment should be made based on the applicant’s CV or application form,
with the same criteria being applied in respect of each application. For example, awarding a point for each criterion the applicant meets with those applicants who score the highest marks being invited for interview. In the event that a complaint is made, this will help you to demonstrate that you have not been discriminatory but have been objective and treated every application the same.
Interviewing applicants
Ideally, interviewers should be trained to conduct interviews with equality in mind, such as avoiding being influenced by stereotypical assumptions relating to an applicant. This is important as to make such assumptions about an applicant’s age, nationality, or any other protected characteristic could be discriminatory.
When arranging the interview, you should ask applicants in advance whether they have any special requirements, for example to assist them with any physical impairments. Once notified of any disabilities, you will be under a duty to make reasonable adjustments to assist the applicant so that they are not put at a disadvantage when interviewed. If you are unaware that the applicant is disabled until it becomes apparent at the interview itself, you are obliged by law to take reasonable steps (known as ‘adjustments’) to ensure that they are not at a disadvantage.
For clarity, it is best to ask again at the start of the interview whether the applicant requires any special arrangements and, if reasonable to do so, make any adjustments before the interview begins.
Where possible, interview questions should be structured and based on the application form, job description and person specification. Any questions which do not relate to the employee’s ability to perform the role should be avoided. For example, asking an applicant questions about their plans for children would not be relevant to their ability to do the job and could be perceived as you not wanting to employ a mother which would be discriminatory. If this sort of information relating to a protected characteristic is volunteered by the applicant, interviewers should ensure that they are not influenced by it and do not take it into account when selecting the successful applicant.
The key lesson here is to ensure that you give an applicant no opportunity to launch a claim. Only enquire about those aspects of the employee that relate to the job.[/wlm_ismember]
