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The dos and don’ts of recruiting: avoiding discrimination

1 April 2019

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Employment lawyer Charlotte Ollerenshaw explains how practice managers should approach the recruitment process to ensure they stay on the right side of discrimination legislation 

If practice managers are concerned about falling foul of employment law when recruiting, the biggest legal minefield is asking candidates questions about their health.

This is because pre-employment health questions are governed by the Equality Act 2010 which prohibits employers from asking such questions – other than in a few restricted instances.

The act also shifted the burden of proof to the employer in cases where a candidate who was asked a prohibited health question later brings a direct disability discrimination claim.

The current law puts the onus on the employer to prove that they did not ask a prohibited health question, rather than requiring the candidate to demonstrate that their prospective employer posed such a question.

Other than the permitted questions outlined below, employers must not enquire about the health of an applicant before offering them work or before shortlisting a pool of potential recruits.

This applies when employers ask applicants questions directly, and when they seek a reference from a former employer. Any breach of this rule is an unlawful act and could put the practice at serious risk of a disability discrimination claim.

So, when is a health question permitted as part of the recruitment process?

  • Where it is necessary to establish if the applicant can attend an interview or assessment, or to find out if there is a duty to make reasonable adjustments for that person on the day the interview takes place.
  • Employers can also ask health questions to determine if the applicant can carry out a duty that is intrinsic to the work concerned. For example, if the vacancy involves significant heavy lifting, questions about if the person has any back problems are permissible.
  • Queries are also allowed to monitor diversity in assessing the range of people applying for roles.
  • Questions about taking positive action are also within the legal parameters. An example would be an employer seeking to take on a disabled person as a disability support worker and needing to ensure the would-be recruit is disabled.

However, it’s important to remember that an employee is not duty bound to disclose a disability during the recruitment process.

In the context of recruitment, the definition of ‘disability’ under the Equality Act 2010 states that a person has a disability if they have a physical or mental impairment and if the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The best way for practice managers to mitigate any risk of discrimination is to go through a rigorous recruitment process, where they get to know the candidate as well as possible before offering employment.

There are a number of steps you can take – both during and after the recruitment process – to help to prevent discrimination.

These include making sure everyone involved in recruitment is properly trained, checking that advertisements are thoroughly vetted – for example avoid wording such as ‘youthful and vibrant support staff required’ – and ensuring the key requirements/duties are clear from the start in job descriptions.

Be aware that there is no minimum qualifying period for bringing a discrimination claim. The complainant may not have been employed at all and it may, in fact, be the failure to employ that gives rise to the complaint.

In interviews, ask questions that are wholly appropriate for the job requirements, avoiding any that could be misinterpreted as discriminatory. Ask all applicants the same questions in the same order; a robust process that will also help with shortlisting.

In cases where a candidate suffers from a disability, ensure that suitable arrangements are in place for the interview. This includes considering parking, accessibility via a lift and the layout of the interview room.

When giving feedback, be careful not to make a statement that is open to misinterpretation, causing the applicant to believe they have been treated less favourably for a discriminatory reason.

Remember that it’s essential to make a conditional job offer. A binding contract comes into existence once an unconditional offer of employment has been accepted.

If the employer seeks to withdraw the offer, the employee may claim breach of contract. Always confirm the offer of employment with an offer letter, making sure it is conditional on satisfactory references, work qualifications and receiving copies of any relevant qualifications – such as diplomas. 

When it comes to contracts of employment, an employer’s obligation is to satisfy the requirements of section 1 of the Employment Rights Act 1996, which determines that contracts must be issued to employees within two months of starting their employment.

Implementing the robust processes outlined above can help practice managers stay on the right side of discrimination legislation; avoiding claims that end up in employment tribunal and inflict serious financial and reputational damage.

Charlotte Ollerenshaw is an associate on law firm Keebles’ employment law team, advising on contentious and non-contentious employment matters