Employers must be careful not to discriminate when recruiting, including when asking questions at interview. They must avoid questions that relate to ‘protected characteristics’ under the Equality Act. So, what shouldn’t you be asked and what can you do if you believe you have been discriminated against?
What are protected characteristics?
Protected characteristics under the Equality Act are age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
To support the Equality Act, the Equality and Human Rights Commissions (EHRC) produced the Employment Statutory Code of Practice (the EHRC Code). The EHRC Code sets out recommended practice for employers and suggests that by conducting interviews strictly on the basis of any application form, job description, person specification, the agreed weight to be given to each criterion and the results of any selection tests, an employer will ensure that all applicants are assessed objectively and solely on their ability to do the job satisfactorily.
During the selection process but particularly at the interview stage, employers can make judgments about a candidate based on instant, subjective and irrelevant impressions. If assumptions are made about the capabilities or characteristics of people from a particular group of people sharing protected characteristics which contributes to an unfavourable impression and effects the employer’s selection decision, this could be unlawfully discriminatory.
What questions should be avoided?
It is not necessarily unlawful for an employer to ask questions that relate to a protected characteristic, but they may be more at risk of an allegation of discrimination if such questions are asked. Whether there has been unlawful discrimination depends upon whether the individual has been disadvantaged by the questioning.
Employers should avoid asking a candidate’s age or date of birth.
Employers should not ask about health or disability related questions at interview stage or on an application form, including how many sick days a candidate had in previous jobs. However the EHRC Code suggests that it is good practice to ask candidates whether they need any reasonable adjustments in advance of the interview or on the day of the interview.
In terms of the role applied for, employers can ask about a candidate’s ability to carry out a function which is essential to the role. If the candidate has a disability, the employer should consider whether reasonable adjustments could be made which would enable the candidate to carry out the role.
Once a candidate is appointed, the employer may ask about the individual’s health for the purposes of ensuring they are able to carry out the role and establishing whether they need any reasonable adjustments.
There are some exceptions as to when an employer can ask questions about health or disability before offering the job, e.g. if the job itself requires someone with a particular disability where this is an occupational requirement.
Marital status/sexual orientation/pregnancy/children
Questions about a candidate’s marital status, sexual preference, whether they have children or are planning a family should be avoided. A woman is under no obligation to declare her pregnancy in the recruitment process. If she volunteers that information it should not be taken into account in deciding her suitability for the job.
If an employer asked where a candidate was born or what their religious views were, for example, on the basis of a candidate’s appearance or their name, the candidate may argue that they were discriminated against if they did not get the job.
Feedback to unsuccessful applications
There is no legal obligation for employers to give feedback to unsuccessful applicants but the EHRC Code recommends that it is good practice to do so. An employer’s failure to give feedback following a request by the unsuccessful applicant could imply that the reason for rejection is a discriminatory one.
Claims for unlawful discrimination
If a candidate has been asked questions that relate to a protected characteristic and is treated less favourably as a result of their answers (e.g. not being offered a job) they are entitled to bring a claim of unlawful discrimination at the employment tribunal.
If the tribunal concludes that the employer has discriminated and the employer cannot provide a credible explanation for its decision, which is non-discriminatory, the claim will succeed.
Can we help you?
If you need advice about your individual situation, please contact us. Call on 01522 440512 or visit our website www.lincslaw.co.uk for more information.
Associate, Specialist Employment Law Solicitor
Lincs Law Solicitors, Lincoln