Interview pitfalls for the unwary
Under the Equality Act 2010, employers are prohibited from discriminating on the basis of protected characteristics during the recruitment process. The protected characteristics are:
- age
- disability
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race
- religion or belief
- sex
- sexual orientation
Specifically, employers cannot decline to offer an applicant the role or amend the terms and conditions on the basis of these protected characteristics. Asking questions relating to protected characteristics is dangerous as it can give rise to an inference that a subsequent failure to offer the candidate the role was due to the protected characteristic in question. The mere fact of asking questions in relation to protected characteristics could also amount to unlawful harassment, whatever the outcome of the interview process.
Claims for discrimination can be brought against employees of the company or recruitment agents if they were responsible for discrimination during the recruitment process. The intention is “to ensure that both the person carrying out an unlawful act and any person on whose behalf they were acting can be held to account where appropriate.”
To avoid claims for discrimination under the Equality Act 2010 interviewers should avoid asking questions about any protected characteristics, including questions about the following topics:
Children and Childcare
In a recent survey conducted by recruitment software developers, Applied, 18% of women reported being asked by their prospective employer whether they have children or planned to have children in the future. For women in senior management positions, this figure rose to 40%. It is clear that such questions may give rise to a sex discrimination claim if the applicant is not successful in the recruitment process.
In 2016, the Japanese Consulate was ordered by the Employment Tribunal to pay £2,000 compensation for sex discrimination to an unsuccessful job applicant who was asked about her children during an interview. The Claimant reportedly spent half her interview answering questions about her childcare arrangements, such as what she would do if one of her children was sick or whether her family could help care for her children. The Tribunal concluded that “the interviewers would not have asked such questions of a hypothetical male comparator.”
Race and Nationality
Research has shown that racial bias influences the recruitment process from the very beginning. For example, “CV-stings” conducted by Oxford University in 2019 demonstrated that applicants from minority ethnic backgrounds had to send 60% more applications to get a positive response from an employer than a white person of British origin.
In an interview context, discrimination claims can arise when employers ask questions about race and nationality. Employers should be mindful that (potentially well-intended) questions about a person’s first language or country of origin can create an uncomfortable atmosphere for an applicant and raise questions about the legitimacy of the ultimate hiring decision.
Religion or Philosophical Beliefs
Employers should also avoid questions about religion (or, for example, what school a candidate attended) during the recruitment process. It should be noted that an employer does not contravene the Equality Act where there is a genuine and justifiable requirement for an applicant to be a member of a specified religion, or of a particular faith, to fulfil the role. Where there is such an “occupational requirement” it would be permitted (and arguably expected) that the recruitment process would involve discussions regarding religion and beliefs.
Employers should bear in mind that the Equality Act protects against discrimination on the grounds of both religious and philosophical beliefs and that a wide range of views may fall under the latter category. For example, in Casamitjana Costa v The League Against Cruel Sports, the employment tribunal held that ethical veganism could amount to a protected philosophical belief.
Health
Questions about health pose particular difficulties in an interview context. Section 60 of the Equality Act 2010 directs employers not to ask applicants questions about their health or disability until they have decided to make a job offer (at which case it is legitimate to carry out health screening). At the earlier recruitment stage an employer should only ask applicants about their health if they are:
- establishing whether they are able to undertake an assessment or whether reasonable adjustments may be required to the recruitment process,
- establishing whether the applicant can carry out a function that is intrinsic to the role,
- monitoring the diversity of applicants,
- taking positive action under section 158 of the Equality Act 2010 to overcome or minimise the disadvantage faced by people with a disability in applying for the role,
or
- if the role requires the applicant to have a particular disability.
In serious cases, unlawful questions regarding health or disability could lead to enforcement action by the Equality and Human Rights Commission. If such questions are asked that could also be a basis for a claim for disability discrimination or harassment by an applicant.
Conclusion
To avoid potential discrimination claims, employers should apply a consistent process to all applicants, including asking the same set of questions at interview, and should train those involved in the recruitment process to prevent unconscious bias. Employers should ensure any questions regarding health or disability are only asked where necessary and, in most cases, that this information is not shared with those who will be assessing the applicants’ suitability.
For more advice about the recruitment process or discrimination claims, please contact our team of employment law experts.
This update contains general information only and does not constitute legal or other professional advice.
Kate Ross, Trainee Solicitor: 0141 221 8012 / Connect with Kate on LinkedIn
Laura Salmond, Partner & Accredited Specialist in Employment Law: lis@bto.co.uk / 0141 225 5315 / Connect with Laura on LinkedIn
