Inclusive Recruitment – Avoiding disability discrimination
The main goal in recruitment is to hire the most suitable candidates from the job market to fill job vacancies so that the employer can deliver its goals and objectives. Typically, a recruitment process includes advertising the role, submission of applications, CV screening, assessment test and one or more interviews. However, these common recruitment processes may not suit everyone and could put some disabled or neurodiverse candidates at a disadvantage, potentially resulting in discrimination.
Are job applicants protected against disability discrimination?
Yes, job applicants are protected against disability discrimination. The Equality Act 2010 defines disability as a physical or mental impairment that has a substantial and long-term adverse effect an individual’s ability to carry out normal day-to-day activities. Under the Equality Act, it is unlawful for an employer to:
- Discriminate directly by treating a job applicant or employee less favourably than others because of disability;
- Discriminate by treating a job applicant or employee unfavourably because of something arising in consequence of disability without objective justification;
- Discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages job applicants or employees with a disability without objective justification;
- Fail to comply with its duty to make reasonable adjustments where a disabled applicant or employee is placed at a substantial disadvantage.
Can job applicants bring claims in an employment tribunal against a prospective employer?
Yes. Where an organisation does not meet its legal obligations, claims for discrimination or harassment may be brought by job applicants against the prospective employer (as well as any individual employees or recruitment agents who were responsible for the discrimination). This can be costly, in terms of legal fees, the compensation (including injury to feelings) that can be awarded, management time and reputational damage.
How does an employer avoid discriminating against disabled job applicants?
It is crucial that employers ensure that those tasked with recruitment processes refrain from asking job applicants health or disability-related questions until after a job offer has been made, unless those questions are necessary for adapting the recruitment process or establishing whether the job applicant can fulfil the essential functions of the job.
Employers should be prepared to make reasonable adjustments to policies, recruitment procedures and practices and to physical features of premises, in order to accommodate the needs of a particular disabled job applicant. Adjustments will be dependent on the circumstances and the individual’s particular needs.
It is important that employers avoid making negative assumptions about the abilities of someone with a particular disability. Employers should educate those involved in recruitment about the effects that unconscious bias in relation to disabled people can have on selection decisions. Employers should ensure that those tasked with recruitment receive training on their organisation’s equality policy and its application to recruitment, including interviewing techniques. Interviewers should apply a scoring method objectively, prepare questions based on the person specification and the information in the application form and avoid questions that are not relevant to the requirements of the job.
It is important to ensure that job adverts do not state or imply that the job is unsuitable for a disabled person. It is advisable to refrain from specifying qualifications, specific experience, health or fitness requirements, mobility or dexterity that have little relevance to the advertised post, as such criteria may discriminate against a person with a disability.
Employers should provide information to job applicants in formats that facilitate applications from disabled people. If the recruitment process involves an assessment element, consider modifying assessment tasks to accommodate different learning styles. Candidates with learning disabilities may require extra time or regular breaks. Others may require the assessment to be presented in a different format, such as Braille, large print or different electronic formats.
Employers should implement an equal opportunities policy and ensure that it states clearly that there must be no discrimination or harassment against any employee or job applicant on grounds related to disability. Everyone who is responsible for recruitment should be familiar with this policy and understand the duty to make reasonable adjustments.
All recruitment decisions should be documented (clearly and objectively) so that there is a paper trail in the event of any complaint or litigation. It is relatively common for unsuccessful candidates to bring employment tribunal claims alleging discrimination and you need the paperwork to be able to resist such a claim.
Once an offer of employment has been made, health questions can be asked to assess the individual’s ability to do the job, and to identify any reasonable adjustments required for the role. Any such questions should be proportionate and relevant to the specific job requirements. If the employee chose not to disclose their disability during the recruitment stage, they must not be treated less favourably if the employer later becomes aware of a disability.
Conclusion
Employees are not obliged to disclose a disability during the recruitment process and must not be asked health questions unless one of the exceptions applies. Employers should proactively take steps to make their recruitment processes accessible to all candidates. This involves creating inclusive job adverts, offering flexible interview formats, and providing reasonable adjustments tailored to individual needs. By adopting such practices, employers not only comply with their obligations under the Equality Act 2010, but they also contribute to the creation of a workplace that values and accommodates the unique abilities of each employee and candidate. If you would like to discuss any aspect of this blog, please contact a member of our Employment Law Team.
This blog contains general information only and does not constitute legal or other professional advice.
Lesley Grant, Associate: ljg@bto.co.uk / 0141 221 8012 / Connect with Lesley on LinkedIn
Kimberley Tochel, Trainee Solicitor: kto@bto.co.uk / 0141 221 8012 / Connect with Kimberley on LinkedIn
