Recruiting fairly: open, inclusive, fair to all potential applicants
'View from the Chair' article by Dr Michael Wardlow
View from the Chair article published in the Business Newsletter, 22 May 2018 by Dr Michael Wardlow, Chief Commissioner, Equality Commission NI
One of our core responsibilities in the Equality Commission is advising employers and business people – and one of the issues which they frequently ask about is recruitment. This is an area which has seen great improvements over the years since equality laws were introduced, but all employers still have to make sure that each of their recruitment exercises is open, inclusive, and fair to all potential applicants.
One instance which has been in the news recently relates to the advice we gave the UK Border Force regarding the Northern Ireland part of a UK wide recruitment process. Amongst a number of comments offered, we drew attention to Northern Ireland’s equality legislation, which is different from that in Great Britain. Following this advice, we understand that the Border Force took separate legal advice from the Crown Solicitor’s office regarding the applicant criteria used in the exercise.
All employers, when embarking on a recruitment exercise, need to give serious thought to such criteria, ensuring that only the essential attributes which the eventual job-holder will need to effectively perform the duties of the post are required. These will normally include such issues as educational and other types of specialised qualifications, as well as applicants’ skills and work and life experiences.
Any specific set of criteria will inevitably exclude or discourage some people from applying for a post. If, however, the criteria disadvantage groups of people protected by equality legislation, employers need to consider whether there is a possibility of unlawful direct or indirect discrimination. It is important, therefore that employers focus only on the genuine occupational requirements necessary to do the job in question and what the balance is between that need and any potentially discriminatory impact it might have.
For example, there may be an insistence that candidates be qualified to university degree level, yet it is known that people aged 25-44 years are more likely to be qualified to degree level than people aged over 45 years. Minimum height or physical fitness requirements may disproportionately exclude women and disabled persons. A criterion which rules out flexible working – by insisting that a post-holder work fixed “9 to 5” hours for example – will have an impact on people with caring and family responsibilities and disproportionately affect women. A criterion for fluency in a particular language will disadvantage those who do not speak it.
We recognise that some of those requirements may well be necessary for specific posts and, if so, could be justified as genuine occupational requirements. However, if any criterion is applied without such justification, or without considering all non-discriminatory alternatives, such a requirement might unnecessarily deny people the opportunity to apply for jobs which they are actually suitably qualified to do, and it may amount to indirect discrimination.
It is for employers themselves, in the first instance, to decide whether a criterion is objectively justified, and that will depend on the particular needs of the posts in question. Where someone complains that a criterion for recruitment is indirectly discriminatory, a decision on whether that is so, and whether it may be justified, would be for an employment tribunal to decide.
In the guidance and advice the Commission gives all employers on recruitment and selection there is a clear underlying message. The more open and inclusive the recruitment process, the more likely it is to avoid unlawful discrimination and increase the likelihood of getting the best and most qualified people for the job.