Equality Act: It’s recruitment, but not as we know it…?

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We consider what changes will need to be made to recruitment in reality in the light of the equality act.

Fergal Dowling, Partner in the Employment team at law firm Irwin Mitchell warns recruiting is tough enough as it is but now there are more things to look out for than ever before.

The advice from all sides, from leading legal firms to Acas is to double check the way you are recruiting, to ensure you are not opening yourself up to litigation in light of this new legislation.

Apart from the obvious legal costs and possibility of compensation payouts, there is brand damage and customer perception to be aware of too. Fergal explained: “There was a high profile case recently where an electric wheelchair user took legal action against a high street bank to force them to install a ramp at a cost of £200,000 as it was ruled that they did not do enough to provide disabled customers with access to their building.”

However that wasn’t the end of the story. Fergal added: “They also had to contend with the negative publicity as they tried to force customers to use a more accessible branch much further away.”

“Another case hitting the headlines was a well-known clothing brand that forced a girl with a false arm to carry out backroom tasks instead of shop floor work as her prosthetic arm did not fit its ‘public image’. The same retail brand also caused a stir recently when an employee wore a Muslim headscarf which did not comply with the store’s dress code.”

So the warnings are clear – and with the new Act it’s possible more claims will succeed.

In addition, the Act introduces restrictions on asking job applicants about the state of their health during the recruitment process, which may well lead to confusion.

David Pottier, Managing Director of  The SeeV, a company which provides video recruitment solutions, said:  “While the ultimate aim of stamping out discrimination at work should be encouraged, the reality is that many employers are going to be left unsure about what they can and can’t discuss during the recruitment cycle, and concerned about asking potentially litigious questions.”

He believes his new format of CV-viewing will help employers get around the new legislation. He explained: “At first it might seem that selecting interview candidates via a video or audio platform, rather than paper CVs, might open employers up to a greater risk of potentially litigious snap judgments.

“However, the reality is that this process provides additional evidence that a complete and thorough process has been adhered to. Applications can be stored and watched again during the recruitment process by different stakeholders, and all candidates are asked the same questions and given the same chance to respond. While this approach may not be appealing to all candidates, it certainly ensures that everyone has been treated in the same way.”

Clearly there will be a continued need for HR to demonstrate that it is recruiting fairly and on merit, and not discriminating. With the lack of enforcement of ‘positive action’ there is perhaps less complication when it comes to diversity policies.

And there is some doubt as to how many employers were using pre-employment health questionnaires, with many employment lawyers believing this will in reality have little impact.

Either way, there may be no need to panic. Paul Killen, employment law partner, Osborne Clarke, sought to reassure employers and recruiters, saying:

"It's true that the Equality Act 'outlaws' pre-employment health questions but the consequences of asking an unlawful (or, as has been widely termed, 'illegal') question are not as severe as some commentators are saying. Employers will not face claims from employees simply for asking a question.

"An individual can only claim if they have suffered due to being asked a question about their health - for example if they did not get the job. A good employer that has thorough and proper recruitment processes should be able to defeat such a claim if it can show that, despite the unlawful question, the applicant would not have been selected anyway on the basis of their qualifications and experience.”

When recruiting, it’s business as usual, given a through health-check of not your candidates, but your policies, procedures and record-keeping.

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