Could you face a discrimination claim from a job applicant who applies solely to bring that claim?

Whilst most employers are aware that they could face discrimination claims from their employees, not all are aware that they could face claims from job applicants if the recruitment process is discriminatory.

The Equality Act 2010 specifically prohibits discrimination, victimisation and harassment in recruitment on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It is therefore important to tread carefully when recruiting new staff.

Specifically, you must not discriminate against someone in the “arrangements” you make for deciding to whom to offer employment, in relation to the terms on which you offer employment or by not offering someone employment. We will come on to how to avoid this a bit later on.

However, what if you get this wrong and inadvertently publish a discriminatory job advert, for example? If someone spots this and applies for that job solely to then bring a claim against you, might they succeed? A recent European case explored this question.

In that case, a qualified lawyer applied for a legal trainee position. When his application was rejected, he wrote to the company to complain of age discrimination and demand compensation. Despite the company then inviting him to an interview, he declined and went on to issue a discrimination claim. This case worked its way up through the Courts, ending up in the European Court of Justice (“ECJ”).

Fortunately, the ECJ decided that if a person applies for a job with a view to claiming compensation for discrimination and not because they actually want the job, this might well be considered abusive or fraudulent, and the claim should fail. Whilst this is a helpful (and perhaps quite obvious) principle, every case is different, and it will not always be straightforward to show that a person has applied for a job solely to go on and bring a discrimination claim.

So what can you do to minimise the risk of a discrimination claim in the first place?

Be careful what “arrangements” you make for deciding who to recruit

“Arrangements” could include:

• The content of a job advert or job description - e.g. asking someone to be "young" or "dynamic" could be age discrimination;
• The application process - ensure you have a standardised application process for all candidates, to show you have assessed them fairly and without discriminating;
• The format and content of application forms - e.g.
  • offer and accept job information and application forms in accessible formats if requested, e.g. Braille, Easy Read or large print; 
  • avoid questions about protected characteristics (e.g. marital status or disability) unless these reflect occupational requirements for the job;
  • don’t ask for photos of applicants unless they are essential for selection purposes, e.g. for an acting job or for security purposes, such as to confirm that a person who attends for assessment or interview is the applicant;
  • if you use equal opportunities monitoring forms, include these separately to the application form and separate these from application forms before shortlisting (so that the information provided by applicants has no influence on the process).
• The physical arrangements and location of an interview - e.g. holding an interview in a location which a disabled person cannot access. It is always best to ask candidates in advance and/or on the day whether they require any adjustments to be made;
• The date or time of interview - e.g.
  • it could be discriminatory to require a woman to attend an interview in the evening, as more women than men might have childcare commitments during the evening; or
  • If using written or psychometric tests, consider adjustments for a disabled person, such as providing written instructions in an accessible format, allowing them extra time to complete the test, permitting a disabled person the assistance of a reader or scribe during the test or allowing a disabled person to take an oral test in writing or a written test orally.

Be able to explain and justify why you are accepting or rejecting a job applicant

Try to ensure that you select candidates on the basis of their application form, the job description/person specification, the results of any selection tests and their ability to do the job satisfactorily, and not because of anything which is unrelated to the job.

Keep all selection documents, including test papers, assessment notes, any rationale for your recruitment decisions and records of your decisions in case you are challenged on these.

Be careful in relation to the terms on which you offer employment

For example, requiring someone to work full-time, in the evenings, on Sundays or even compulsory overtime could potentially constitute indirect discrimination, as it may be harder for certain groups of people to comply with that requirement e.g. for childcare or religious reasons. You must, therefore, be able to objectively justify why you have that requirement in case you are challenged on it.

What does this mean for you and your business?

As you can tell from the above, there are many areas in recruitment which could potentially trip you up, and you could end up facing a discrimination claim.

In order to avoid the management and legal costs and bad PR associated with such a claim, try to ensure that all aspects of your recruitment process are as fair and consistent as possible. There is a lot of free, helpful guidance in this area, including the Equal and Human Rights Commission Employment Code of Practice, which contains a helpful chapter (16) on avoiding discrimination in recruitment.

Remember also that, under the Equality Act 2010, you will be liable if your employees commit discrimination in the course of their employment, whether or not you knew or approved the acts of discrimination, unless you can prove that you took all reasonable steps to prevent such discrimination. To benefit from this defence, ensure that you provide regular training to any of your employees who are involved in recruitment, and keep those training records.

• Check your Equal Opportunities policy (and get one if you haven’t got one already!) is up to date and makes clear that you are committed to fair and non-discriminatory recruitment and selection.

• Review your application forms and recruitment processes.

• Review your equal opportunities statistics (if you gather these) to make sure that there are not significant disparities between the success rates for different groups of people sharing protected characteristics.

• Train all your employees who are involved in recruitment on your Equal Opportunities policy and its application to recruitment, and keep training records.

• If you use recruitment and employment agencies, make sure they have a copy of your Equal Opportunities policy.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.