STAFF MATTERS: Promoting fairness and diversity in recruitment

In the dynamic world of business, finding and hiring the right talent is crucial for success. However, employers must remember that recruitment practices in the UK are subject to what can be a complex web of laws and regulations.

Failing to comply with these legal obligations can have far-reaching consequences, from expensive tribunal claims to severe damage to a company's reputation. It is therefore imperative for employers to familiarise themselves with the essential ‘dos and don'ts’ of recruitment, ensuring a fair, transparent, and legally compliant process that avoids potential pitfalls.

Under the Equality Act 2010, it is discriminatory to reject an otherwise qualified applicant for a role solely based on a protected characteristic. Whether it is age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, or sex and sexual orientation. Such discriminatory actions can expose employers to legal claims. Job adverts should be free from bias and avoid language that may be perceived to be discriminatory, and instead focus on the essential skills and qualifications needed for the role.

During the recruitment process, employers must also avoid asking questions that could reasonably lead applicants to believe that they were unsuccessful due to a protected characteristic. For instance, questions such as: "If you were successful, when do you plan on starting a family?"

Enquiring about a candidate's health history should also be avoided however, there are narrow circumstances where an employer can legitimately ask questions related to health given the specific requirements of the role. For example, it would be permissible to ask an individual who has applied for a role as a labourer on a building site questions about their health (normally via a pre-employment health questionnaire) and if they have any underlying issues which would prevent them from lifting heavy bags of cement or equipment, to ensure their suitability for the position.

Schedule 9 of the Equality Act 2010 allows for exceptions when a genuine occupational requirement exists. For example, a theatre company seeking a black man to play the role of Othello or a Mosque employing an Imam who must be male and Muslim. These requirements are directly related to the nature of the roles. However, it is crucial to distinguish between genuine occupational requirements and unnecessary conditions that are not intrinsic to the job. Demanding that a car park attendant for the Mosque be both male and Muslim, for instance, would not be a genuine occupational requirement as it is not essential to the role.

By ensuring fair treatment and creating a positive environment throughout the job application process, businesses can foster diversity, attract top talent, and strengthen their workforce.

Hussain Kayani, head of team and solicitor at WorkNest.

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