Types of Discrimination

06 RECRUITMENT AND JOBS
RECRUITMENT AND SELECTION GUIDELINES
AVOIDING DISCRIMINATION DURING RECRUITMENT

INDEX

Summary
The law
Types of discrimination
Disability discrimination
Positive Action
Occupational Requirements (OR)
How to avoid discrimination at each stage of recruitment process
Job descriptions
Job advertisements
Shortlisting
Interview arrangements
Interviewing and selecting
Avoiding discriminatory questions
Asking direct and probing questions
Avoiding age discrimination
Avoiding race discrimination
Avoiding disability discrimination
Disability facts
Interviewing a disabled candidate
Effective interview questions
Reasonable adjustments
Interview notes
Offer of employments
Equal pay
Other adjustments
Pre-employment checks
CRB / ISA checks
Avoiding race discrimination when checking eligibility to work in the UK
Pre-employment Health Questions

1. Summary

The purpose of the recruitment process is to find the best candidate for a vacancy irrespective of race, disability, gender reassignment, marital status, sex, sexual orientation, age, religion or belief.

The following guidance has been developed to provide recruiting managers with a basic awareness of the Equalities Act 2010. They ensure legal compliance, fairness through consistency of approach, the removal of potential barriers to access and inclusion and to balance the need for transparency and equality of opportunity for all.

In addition to reading this guidance it is essential at least one member of the interview panel has attended the CYC Recruitment and Selection Training Course or the Refresher Training Course, to ensure the panel has an understanding of discrimination and equalities issues – use this booking form to request a place. Where more detailed guidance is required please contact the Human Resources Department.

2. The Law

The Equality Act 2010 protects employees and candidates against discrimination on the basis of a ‘protected characteristic’. The defined protected characteristics (PC) are:

· Age;

· disability;

· gender reassignment

· race;

· religion or belief;

· sex

· sexual orientation

· marriage and partnerships

· pregnancy and maternity

a) Types of Discrimination:

Direct / Indirect discrimination / Examples of types of discrimination
Direct Discrimination / Direct discrimination occurs where a person (i.e. a candidate) is treated less favourably than another person because they have or are thought to have (see perceptive discrimination below) or because they associate with (see associative discrimination below) someone who has a PC.
There is no scope for the council to justify direct discrimination (except direct age discrimination). Once a complaint has been made, it is up to the council to produce evidence to show that this less favourable treatment has not occurred. / A manager turns down an internal candidate for promotion, as the employee is a lesbian. The manager believes the team the candidate would be managing if they were successful are homophobic and this would prevent her gaining the teams respect and managing them effectively. This is direct sexual orientation discrimination.
Associative discrimination / This is direct discrimination against someone because they associate with another person who possesses a PC. / An employee is looking forward to a promised promotion. However after she tells her boss that her mother who lives at home with her has had a stroke, the promotion is withdrawn. Her manager thinks she will not concentrate on her new job due to caring responsibilities. This is discrimination against the employee because of her association with a disabled person.
Perceptive discrimination / This is direct discrimination against someone because others think they possess a particular PC. It applies even if the person does not actually possess that characteristic. / A candidate is refused employment because they are married to a Muslim, even though the prospective employee themselves is not a Muslim.
Indirect Discrimination / Indirect discrimination occurs where the council have a condition, rule, policy or even a practice that applies to everyone but particularly disadvantages people who share a PC.
Unlike direct discrimination, indirect discrimination can be justified if the council is able to show that it acted reasonably in managing its business and that it is a proportionate means of achieving a legitimate aim. / All employees are told they must work full time, this would normally adversely affect a higher proportion of women than men because it is generally accepted that women take greater responsibility for childcare in the home.
However, it would be justified if the employer could demonstrate that it was appropriate and necessary for the effective performance of the job, and not excessive in relation to the needs of the job.

To prevent discrimination candidates must be assessed solely on their skills, knowledge and experience in order for selection panels to make an objective decision on which candidate is the most suitable for a particular job. The recruitment process should be structured to obtain information and facts and the selection panel should take care not to make decisions based on assumptions about candidates linked to their own subjective views and opinions.

Interviewers who focus on the requirements of the job and the extent to which each candidate's background and employment history matches these are more likely to avoid unlawful discrimination and select the most suitable candidate for the job.

b) Disability discrimination

Disability discrimination is slightly different to the other forms of discrimination, as it covers not only direct discrimination and indirect discrimination but also a duty to make reasonable adjustments.

Direct discrimination occurs where, on the ground of his or her disability, a disabled person is treated less favourably than a person without that particular disability.

Disability definition – A person who has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. (To qualify for protection from discrimination, a disabled person does not have to show that their impairment affects a particular ‘capacity’, such as mobility, speech, hearing or eyesight).

For example, if the council seeking a receptionist turned down a candidate with a severe facial disfigurement solely on the ground that other employees or customers would feel uncomfortable working with the individual, this would amount to direct discrimination.

Indirect discrimination occurs where, for a reason relating to his or her disability, a disabled person is treated less favourably than others to whom that reason does not apply, unless the treatment can be justified.

In addition, discrimination against a disabled person can occur where an employer fails to comply with the duty to make reasonable adjustments. For example, if a disabled candidate is invited to an interview, the employer should consider altering the venue if the candidate might have difficulty gaining access.

Go to employment of disabled people guidance here

c) Positive Action

It is permissible under UK law to target advertising at underrepresented groups and this is known as positive action. If the employer thinks that employees or candidates who share a particular protected characteristic suffer a disadvantage connected to that characteristic or if their participation in an activity is disproportionately low.

d) Occupational Requirements (OR)

Although in general there can be no justification in law for direct discrimination, there are exceptions. It may be lawful for the council to apply an occupational requirement (OR) to a particular vacancy.

An OR exists where a person of a certain protected characteristic i.e. race, sex, age, is required to carry out a role where there is a genuine and determining occupational requirement. For example, where a person receives personal care services from the council and requests a care worker of the same sex, it would be justified for the council to require that a care worker of the same sex must undertake that role.

There are very limited jobs within the council where a candidate’s particular background is an OR. In the event a manager identifies the possibility of a post with an OR, they should contact Human Resources for advice.

3. HOW TO AVOID discrimination AT EACH STAGE OF THE RECRUITMENT PROCESS

a) Job descriptions

When writing the job description, they should clearly state the tasks the person will have to do and what skills they will need. They should not include any requirements that are not directly related to the job. (See guidelines for writing a job description in the new format here)

b) Job advertisements

The aim of placing an advertisement should be to attract a sufficient number of candidates, all of whom possess the necessary skills, experience and qualifications to do the job effectively. The council’s recruitment-advertising agency and Human Resources are available to provide advice to recruiting managers when developing job advertisements to ensure that they are not discriminatory.

Key points to consider when developing advertisements include:

· Make sure that advertisements do not contain any sexist, racist, ageist or ambiguous language and that any pictures used do not create a stereotypical image.

· The job title should never be gender specific -, avoid salesman and manageress and use salesperson or manager

· Refrain from specifying age limits or age ranges in job advertisements, along with implied terms such as 'youthful', 'dynamic' or 'mature'. All these terms could be seen as excluding someone from applying for a role based on his or her age.

· Asking for a certain level of experience from candidates could be deemed as discriminating against someone who hasn't had the opportunity to gain that experience as they are too young . Rephrase your job advert, such as asking for candidates who have demonstrated a certain task.

· When notifying vacancies to careers services, employers should specify that they are open to both genders. This is especially important when a job has traditionally been done exclusively or mainly by one gender.

· If a particular language is required ensure you open the vacancies up to all races for example state that someone must be 'English speaking' rather than 'English'.

· It is unlawful for a job description to specify that the candidate must be of a particular gender, race, age etc unless being of that gender race etc is a an organisational requirement (OR). See occupational requirement for further information.

· Where candidates of one sex or sexual orientation, from a minority racial or religious group, or from a particular age group are underrepresented, consider positive action to encourage applications from the underrepresented group. For example offering a guaranteed interview to disabled people who meet the selection criteria.

c) Shortlisting

Short listing should be carried out by comparing each application with the job description to establish whether, on paper, the person has the type of background that is essential for the job. This approach minimises the risk of bias on grounds of gender, race or any other irrelevant factor. Short-listing decisions should be based on the relevant facts as presented on the application form. Personal information such as the candidate's name, sex, age, marital or civil partnership status, sexual orientation, nationality, country of birth, religion and age should not be considered as part of the process.

Points to consider when shortlisting:

· Short listing should be carried out, by comparing each application with the job description. This allows for people to be measured against a clearly stated set of criteria.

· Managers should disregard personal information and select for interview those candidates whose work-related background matches the job description.

· Do not judge a candidate on a poorly presented application form, the candidate may have a disability such as dyslexia or learning difficulties,

· Where a candidate has stated they have a disability, do not draw hasty or negative conclusions about the person's suitability for the job.

· Do not reject a candidate on account of their past sick record, the absence may be linked to a disability that needs to be understood and potential reasonable adjustments made if the position is later offered.

· Although the Equalities Act prohibits age discrimination at all stages of the recruitment process, an exception in the law means that candidates who have reached the employer's normal retirement age, or 65 where it does not have one, or who are within six months of this age, will not be able to claim age discrimination if excluded from the shortlist on the grounds of age.

d) Interview arrangements

The council is obliged to consider any reasonable adjustments required to enable a disabled candidate to attend and participate in the selection process.

Examples of the types of adjustments that could be made include:

· Altering the venue for the interview if the disabled candidate might have difficulty gaining access;

· Reserving a ground-floor meeting room, or rearranging the furniture, to allow a candidate who uses a wheelchair easier access;

· Rescheduling the date or time of the interview at the request of a disabled candidate if the time allocated conflicts with a medical appointment or is inconsistent with the availability of a carer;

· Allowing a candidate with learning difficulties to be accompanied at the interview by a carer or other supportive person;

· Arranging for a sign language interpreter to attend the interview to assist communication with a deaf candidate.

· Ensuring equipment can be accessed by a disabled candidate where tests are planned as part of the interview process.

· On the interview day check that staff who will be escorting or directing candidates to the interview are aware of any special needs and facilities needed i.e. accessible toilets etc.

· Altering interview dates if they clash with any big religious festival dates that may prevent certain racial groups being able to attend.

e) Interviewing and selecting

A great deal of discrimination that occurs during recruitment, and during selection interviews in particular, is done unintentionally and often unconsciously. General points to consider when interviewing & selecting:

· Interview questions should be structured to explore facts against the essential job criteria.

· Pre-prepare a list of core interview questions to be asked of all candidates for a particular post. This approach ensures consistency and fairness because all candidates will be given an equal opportunity to sell their skills and abilities. Unplanned questions can be asked as necessary in order to follow up or probe any relevant matter raised or hinted at by the interviewee.