Pitfalls of Employment

Businesses are having to content with the ever increasing amount of employment legislation/regulation and an increasing number of claims being made by employees. However, many employers do not appreciate that in the employment field they could have to defend resulting claims in the whole area of recruitment even before an individual is employed.

Employers obviously want to choose the best candidate for a position they wish to fill but they at the same time they need to be careful as to how they go about this process. Likewise employees need to be able to understand their rights and what courses of action they could take in the event that they feel that they may have been discriminated in the whole recruitment process.

Job Advertisements

When placing an advertisement for a position there are a number of legal aspects to consider. For example, descriptions contained in a job advertisement concerning duties and responsibilities may have an impact on the final contract of employment and require careful consideration at the outset of the recruitment process. Job advertisements are also subject to trade description legislation under which it may be unlawful for a person to make a statement which he knows to be false or recklessly to make a statement which is false.

It is also unlawful to refuse a person employment because he is or is not a member of a trade union or because he/she is unwilling to a requirement to take steps to become or cease to be or to remain or not to become a member of a trade union. Therefore any advertisement which states it is only open to a person who is not a trade union member would render such an advert unlawful.

However it is the whole area of discrimination where an employer can render themselves liable to discrimination claims as a result of the recruitment process including the content of job adverts.

Discrimination

The Sex Discrimination Act 1995 ('SDA') makes it unlawful to discriminate in employment on the grounds of sex or marital status. So, a job advert for a "sales girl" "stewardess" or an advert saying "must be nimble fingered to work in a predominantly female environment" which implies packing jobs are restricted to only women could be likely to be potentially discriminatory.

Direct sex discrimination is less favourable treatment of a woman than a man (or vice versa) because of her sex, for example a restaurant puts a card in the window saying that "waiters are required". This implies men only whereas the advert needs to make clear that the vacancy is open to both men and women e.g. "waiter/waitress required".

If an employer refused an interview because they had a policy of not employing women with children then this would be an example of direct sex discrimination. Another example would be where an employer withdraws a job offer when told a female recruit was pregnant.

Indirect sex discrimination occurs when a condition or a requirement is applied equally to both women and men, but it affects more women than men or vice versa is not generally necessary. An employer advertises for a person who is "six foot tall and plays rugby" when these requirements are not necessary to do the job.

The Race Relations Act 1976 ('RRA') makes it unlawful to publish an advert or to not select/offer a position which discriminates on racial grounds or to make arrangements for such an advertisement. Racial grounds include not only grounds of race but also those of colour, nationality, citizenship or ethnic or national origin. An example of direct discrimination would be where a shop advertises in a local newspaper for a Pakistani assistant.

Indirect discrimination occurs when rules, requirements or conditions that appear to be fair can be shown to put people from a particular racial group at a greater disadvantage than others. A university which invites applicants who only speak English as their mother tongue would discriminate against people who speak English fluently but not as their mother tongue.

With the Employment Equality (Sexual Orientation) and Employment Equality (Religion or Belief) Regulations 2003 now in force employers will need to take care that do not discriminate on the grounds of sexual orientation or religion. A job advert therefore inviting only Muslims or lesbians to apply or top refuse to select for interview or offer a job on these grounds could be discriminatory.

Genuine Occupational Defence

There is however an exception/defence under both the SDA and RRA where it is lawful to discriminate in recruitment where the sex and/or race of the worker is a genuine occupational qualification. This is interpreted narrowly and will only succeed where the work is restricted to one sex for reasons of psychology or authenticity or to preserve privacy and decency of carers for example in single sex accommodation. Or under the RRA where for example a Chinese restaurant requires Chinese waiters and waitresses to create the right ambiance for the restaurant may suffice.

Employers also need to ensure that their recruitment process does not discriminate against disabled people under the Disability Discrimination Act 1995. The Disability Discrimination Act ('DDA') makes it unlawful for an employer to discriminate against a disabled person and the arrangements to be made in determining who should be offered employment. This will include, specifying the job, advertising, the process selection including the location and time, interviews, assessment techniques, interviewing and selection criteria.

For example, an employer that requires employees to visit customers in their own homes in their local area and decides to limit the requirement to people who drive, could be discriminatory as it could exclude disabled people who are unable to drive. The criteria may need to be changes to a requirement "must be willing to travel" as this does not specify how a disabled person could undertake home visits.

Where a job is advertised and a disabled person who applies is refused or deliberately not offered it and complains to an industrial tribunal about discrimination, the DDA requires the tribunal to assume (unless the employer can prove otherwise) that the reason the person did not get the job was related to his disability. If the advertisement could reasonably be taken to indicate that the success of the personal application for the job might depend to any extent on the absence of a disability such as the applicant's or that the employers were unwilling to make an adjustment to a disabled person. One of the reasons for this is that the act says that the duty to make all reasonable adjustments applies, not only during employment but also when considering applications and selection. There is no genuine occupational defence under the DDA but objective justification may apply and this is narrowly interpreted.

Selection Process

The employer advertises and receives a number of applications. These applications must be considered reasonably and fairly, again, so as not to fall foul of the discrimination legislation. The employer must not discriminate in their selection for interview, by for example, deliberately omitting men or women, those from an ethnic minority or those that are disabled.

It is vital when reviewing applications/interviewing to make notes as to why a particular candidate was not selected. This will make it a lot easier should an employer receive a discrimination claim for not calling for interview/offering the position. It is therefore advisable to keep records of any applications for a position for at least six months and preferably nine months after receipt and consideration.

The employer in terms of the application forms will need to take special care to ensure that they are not discriminating against people on the grounds of any disability or the way in which they handle applications. The Employer should make clear that if the person applying has difficulty completing the form then to make them aware of this. Adjustments such as providing an application form in a different format e.g. type written, telephone tape or email could be used.

Interviews

The employer again may need to consider reasonable adjustments for the disabled in terms of where the interviews take place and also in what format and generally as to what questions are asked. Questions such as whether a female is thinking of having children could lead to a direct discrimination claim. Therefore the employer should prepare what questions are to be asked so that they do not give any grounds to an individual to suggest that they have been discriminated whether on the grounds of sex, race, disability or otherwise.

References

Where receipt of a satisfactory reference remains a condition of a contract of employment this needs to be clearly stated in writing at the time of the offer and commencement of employment. Employers are not obliged to give a reference (except in certain sectors) but if they do they must ensure that a reference is not misleading, inaccurate or unfair. An ex-employer can be liable in damages for any economic loss suffered (i.e. they did not get the job) as a result of a reference which is inaccurate, misleading or unfair.

Offers of employment

An offer of employment and acceptance of it by the selected candidate is governed by a general law of contract. Therefore when an offer of employment is made it can only be withdrawn before it is accepted. However, if an offer is made by an employer which is accepted by an employee then, if an employer then decides to withdraw it, an employee is entitled to the notice period under the contract, even if they have yet to start work for the employer. Again, if an employer makes an offer of employment subject to certain terms and conditions, the employer needs to ensure that the terms and conditions are not discriminatory.

Further, employers need to ensure that they comply with their statutory duty to provide employees with a written statement of the terms of their employment no later than two months after the employment has commenced work.

Whilst recruitment may appear to be a relatively straight forward process as you can see from the contents of this article, this may not be the case. Thomas Eggar's employment team will be delighted to help you if you have any concerns about your recruitment process.