Last reviewed 8 November 2016
In this feature, Laura Smith from Backhouse Jones Solicitors reminds operators of the correct recruitment practice procedures when recruiting staff, as the associated costs can be huge to both the business and its reputation if they get these wrong. The Glasgow bin lorry crash is a chilling reminder of this.
Most employers in the transport industry are primarily concerned with the running, logistics and practicalities of operating their business, and recruiting staff and handling references can often take a back seat.
Identifying the potential pitfalls that an employer faces when it decides to recruit a new employee is key to avoiding litigation and human resources issues. In addition to identifying those pitfalls, it is important to consider how they may be avoided by following best practice at each stage of the recruitment process and when obtaining references.
The Equality Act 2010 (the EqA 2010) prohibits discrimination and harassment in relation to nine “protected characteristics”: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
Discrimination, victimisation and harassment in recruitment are covered in ss.39 and 40 of the EqA 2010.
When is discrimination in recruitment unlawful?
An employer must not discriminate, victimise or harass a person who has applied for employment in the following ways.
The arrangements made for deciding to whom to offer employment (see What are “arrangements”? below).
The terms on which employment is offered.
By not offering employment on justifiable grounds.
What are “arrangements”?
The concept of “arrangements” are construed broadly; the arrangements an employer makes for deciding who to offer employment to may include the format and content of application forms, the job and person specifications, and the physical arrangements such as the location and timing of interviews.
For example, a disabled person might complain that reasonable adjustments have not been made to enable them to attend an interview, or a woman with childcare responsibilities might complain of indirect sex discrimination if she is only offered an interview in the evening when she would otherwise be looking after her children.
Someone who has not even applied for a job can theoretically bring a discrimination claim in respect of the employer’s recruitment “arrangements”. However, he or she will have the difficult task of proving that he or she would have applied for the role but was deterred from doing so by the discriminatory advert or statement.
Discrimination in recruitment — who can be liable?
A claim for discrimination or harassment by a job applicant may be brought against the employer and/or any employees and recruitment agents who were responsible for the discrimination or harassment in question. This is to ensure that both the person carrying out an unlawful act and any person on whose behalf he or she was acting, can be held to account where appropriate.
Even if certain acts are contrary to the instructions given, the employer may be vicariously liable under the EqA 2010 for the discriminatory actions of its managers and other employees who have been involved in a recruitment exercise in the course of their employment. However, the employer will have a defence if it can show that it took “all reasonable steps” to prevent the discriminatory act. The employer may also be vicariously liable if it uses consultants or employment agencies to carry out its recruitment exercises.
The Data Protection Act 1998 (the DPA) governs the processing by data controllers (employers) of personal data relating to data subjects (job applicants).
In order to comply with the DPA, job applicants should be made aware of how the employer will process the information they supply, for example through a statement in the job advertisement (which is likely to be that it will be held on computer or manually to assist with the administration of the recruitment process) and how long it will be held for.
Explicit consent for the processing of medical information may be required, as medical information on candidates gained during the recruitment process will include sensitive personal data. In most cases, it will not be necessary to ask for medical information at the application stage (save to ask if the applicant is disabled, so reasonable adjustments to facilitate attendance at interview are considered if necessary). Since 1 October 2010, employers have been prohibited from asking questions about an applicant’s health in certain circumstances, and this will be dealt with below.
When a successful applicant is appointed, the employer will need to decide what information should be transferred to the employee’s personnel file. This should be limited to information relevant to the ongoing employment relationship in order to act within the confines of the DPA.
Practical steps of the recruitment process
The Equality and Human Rights Commission produced the “Employment Statutory Code of Practice” (The Code) and chapter 16 is a useful reference point regarding recruitment which can be taken into account in tribunal proceedings when considering a claim. The Code makes several recommendations about the creation of a job description in order to assist employers in avoiding claims that it unlawfully discriminates against people because of a protected characteristic.
Before advertising a vacancy, the employer should draw up a detailed written job description and person specification which will not only focus the employer’s mind on the skills and experience required for the vacant job which it wants a candidate to demonstrate but, in documenting those requirements, the employer will also establish its objective approach (not influenced by any unlawfully discriminatory considerations).
In addition to ensuring that the job description is written in plain language, it should also accurately describe the job. The specific duties and responsibilities of the post that a successful candidate would be expected to routinely carry out should be described so that applicants have a clear idea of what the job entails. Where there are different ways of performing a task, rather than specifying how the task should be performed, the job description should state what outcome needs to be achieved.
Finally, employers should avoid specifying unnecessary working patterns if there is uncertainty or flexibility involved, for example, part-time, full-time, or job-share arrangements. Avoiding this not only avoids possible discrimination but also widens the pool of potential applicants. Given the driver shortage within the industry, this approach may assist in increasing the number of applicants applying for a driving role which could in turn assist the business operation if flexible working can be accommodated.
A person specification describes the skills, experience, abilities, qualifications, knowledge and qualities that are considered necessary or desirable in an applicant, in order to perform all the duties in the job description suitably.
One of the best ways of avoiding discrimination claims is by ensuring that any necessary or desirable criteria can be justified for the particular job in question. The criteria may be directly discriminatory unless they are related to occupational requirements or those that are less likely to be met by people with certain protected characteristics may be indirectly discriminatory unless they can be objectively justified.
Health requirements — can employers make them driver-specific?
Including health requirements in recruitment material can amount to direct discrimination against disabled people, where those requirements lead to a blanket exclusion of people with particular impairments and do not allow individual circumstances to be considered. Except in specified circumstances, it is unlawful to ask questions about health or disability before the offer of a job is made.
Including criteria that relate to health, physical fitness or disability, such as asking applicants to demonstrate a good sickness record, may amount to indirect discrimination against disabled people in particular, unless these criteria can be objectively justified by the requirement of the actual job in question.
The recruitment of drivers engages specific health considerations in order for the job to be carried out safely and in certain circumstances, an employer may have a defence to an act of discrimination that is otherwise unlawful.
Since 1 October 2010, the following exceptions have applied across most of the discrimination strands which will be considered in turn.
Occupational requirement (OR) exceptions
The EqA 2010 sets out a number of occupational requirement (OR) exceptions that employers might rely on when facing discrimination claims which include the following.
The general OR exception. This is available where, having regard to the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner) is an OR.
Employment services. An employment service provider can treat a person with a protected characteristic less favourably if the treatment relates to work that could be refused to that person because of an OR.
Justification is key and this should be documented clearly in order to demonstrate the employer’s explanation and, if required, defence to a claim for discrimination when offering employment under certain conditions.
In a follow-up feature, Laura Smith looks at the pre-employment checks that should be carried out before an applicant is offered a job.