It is important to avoid discrimination during the recruitment process. This not only is a legal requirement, but also gives you the best chance of getting the right person for the job.
Remember that job applicants - ie people you don't actually employ - might be able to make an industrial tribunal claim against you if they believe you didn't select them for a job because you discriminated against them unlawfully.
When defending discrimination complaints, those employers who can provide evidence which demonstrates that they properly followed fair recruitment procedures will greatly increase their chances of persuading a tribunal that they did not discriminate unlawfully when making their selection decisions.
For more information on how to adopt and follow fair recruitment procedures, download the Equality Commission Unified Guide to Promoting Equal Opportunities in Employment (PDF, 443K).
Monitoring during recruitment
Note that businesses in Northern Ireland with more than ten employees (working 16 or more hours per week) must register with the Equality Commission and thereafter conduct monitoring of the community background and sex of their job applicants during recruitment. For this purpose, community background is a reference to whether people are members of the Protestant or Roman Catholic communities in Northern Ireland.
Such businesses are not required to monitor their job applicants under any other of the equality categories (such as race, disability, age, sexual orientation, etc.), but it is good practice to do this too and the Equality Commission encourages employers to do it.
Job descriptions and person specification
The Equality Commission strongly recommends that you prepare job descriptions and person specifications for the jobs in your organisation. These will help you to select the best person for each job and to explain your decisions in non-discriminatory terms, if you are later challenged.
When writing the job description and person specification, you should state clearly what tasks the person will have to do and what skills they will need. Job descriptions should accurately describe the genuinely essential duties of the post.
Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. The specification should not have any requirements that are not directly related to the job.
For example, for a position as a fork-lift truck driver, the job specification should not state that the successful candidate needs good written English as this is probably not essential for the job. However, in an editorial or administrative role this would be reasonable criterion.
Employers should advertise all posts widely to ensure that as many eligible and suitably qualified candidates as possible have an opportunity to apply. It is unlawful for a job advertisement to specify that the applicant must be of a particular gender, race, etc - unless being of that gender, race, etc is a genuine occupational requirement. The circumstances in which an employer can rely on a genuine occupational requirement are narrowly defined. If you wish to rely on one, you should contact the Equality Commission for advice.
It is good practice to place an equal opportunities statement in job advertisements. You can find example statements in Chapter 10C of the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment.
It is unlawful to publish job advertisements that state or imply that any candidate's success depends to any extent on them not having, or not having had, a disability, or indicate the employer's reluctance to make reasonable adjustments. In addition, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.
However, note that you can treat disabled people more favourably by advertising a job as being open only to disabled applicants.
To avoid age discrimination it is advisable not to use such phrases as "young and dynamic", "would suit someone who has just qualified", "minimum of ten years' experience" or "must be educated to degree level" unless the criterion or statement can be justified by the genuine needs of the job. If you are in doubt about being able to justify this, it would be better not to include or apply the criterion or statement. You could also contact the Equality Commission for advice.
Read more on age discrimination.
Genuine occupational requirements
In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is an occupational requirement for the job.
For example, it may be possible to set the following job criteria, so long as they are genuine:
- That only women can do a particular nursing or caring job because there is a need to preserve privacy or decency in situations where the job-holder will be in physical contact with other women who might reasonably object to men doing the job (eg helping patients to use toilet facilities, wash or dress themselves).
- In a religious organisation, it may be possible to require a job holder to be heterosexual, but only where the nature of the particular job and the context in which it is carried out requires this in order to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. So, the requirement might apply to a job in which the post-holder teaches Bible classes, but is unlikely to apply where there is no genuine religious aspect to the post-holder's job (eg they are a caretaker or book-keeper).
Employers should draft structured application forms for use in all recruitment exercises. If you use application forms, you should only ask applicants to provide relevant personal details that are relevant to the job selection criteria and to the administration of the selection process eg name, address etc.
However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be required to attend an interview or other selection process.
You should invite disabled applicants to indicate any relevant effects of their disability and to suggest adjustments which might help them overcome any disadvantages they might expect to encounter in the recruitment process.
If the applicant's response reveals or suggests that they are disabled, you should take reasonable steps to confirm whether or not they are disabled under the Disability Discrimination Act 1995. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests. Read Equality Commission guidance on hiring new staff.
If a disabled applicant asks for an application form in an accessible format you should comply with the request if it is reasonable to do so.
It is good practice to omit from application forms questions which relate to religious or similar philosophical belief, political opinion, race or ethnicity, nationality, marital, civil partnership or family status, age, sex or gender reassignment and sexual orientation. Questions about job applicants' health or medical history should not be included in the application form. You may, however, seek and consider such information in appropriate circumstances.
For example, it is good practice to include questions about personal characteristics that are being collected wholly for equal opportunities monitoring purposes, such as sex, community background, race etc, on a diversity monitoring form that you can separate from the main application. Selectors should never be provided with this information.
You should ensure that individuals who are called on to serve as interview panel members have received appropriate equal opportunities training. When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership or plans to have children.
If a candidate has informed you in advance that they are disabled you should ask them if there are any reasonable adjustments you might need to make to enable them to attend and participate in the interview.
Interviews should be constructed in a structured and systematic way. The interview panel members should meet prior to the interview stage to agree and set:
- selection criteria and relative weightings, which are objectively justifiable and which directly and clearly correspond to the criteria described in the job description and personnel specification
- suitable interview questions which directly and clearly correspond to the criteria described in the job description and the personnel specification
- standardised system of scoring for use throughout the process
You should only use tests which provide relevant, reliable and valid assessments of the applicants' abilities to perform the duties of the job, and which have been assessed as having no discriminatory impact on any of the statutory equality grounds.
You must make sure that tests for job applicants are not unlawfully discriminatory. For example, a written English test would discriminate against those whose first language is not English - although you could justify this if having good written English was necessary for the job.
You may have to make reasonable adjustments to adjust a test for a disabled applicant if they would otherwise be substantially disadvantaged compared with a non-disabled person, eg by giving an applicant who is disabled due to dyslexia more time to complete it.
You must always be able to justify your decision to recruit a particular person. Therefore, you should document the recruitment process as much as possible. Documentation should be retained for at least twelve months.
This will help you provide evidence to an industrial or fair employment tribunal if you are faced with a claim of unlawful discrimination.