28 February 2012

Employment law SOS: interview techniques

We're recruiting an engineer and I want to protect myself from any discrimination claims as I've read that some applicants deliberately 'fish' for discriminatory comments during interviews. How do I keep within the law?

At the start of the recruitment process, prepare a clear job description and person specification, including the skills a candidate will require. This will limit the scope for potentially discriminatory issues to creep in.

The Equality Act 2010 makes it unlawful to discriminate against an employee, or potential employee, on the grounds of any 'protected characteristics' – age, disability, sex (including sexual orientation or gender reassignment), marriage/civil partnership, pregnancy and maternity, race, religion or belief.

In its code of practice on recruitment, the Equality and Human Rights Commission cautions managers against making decisions on the basis of "instant impressions and subjective, sometimes wholly irrelevant, factors", rather than an objective assessment based on ability to do the job.

To avoid allegations of discrimination, interviewers should ask all candidates broadly the same questions. Obviously, other questions may be needed to understand a response, or to address the applicant's particular circumstances, but avoid asking questions (or even being drawn into discussing) irrelevant personal details such as family or childcare arrangements. Even if the same questions were asked of male and female candidates, if challenged there is a risk that a tribunal would infer sex-based assumptions behind such questioning.

Disabled candidates should only be asked about their disability if it is clearly relevant to their ability to do the job, or if it is discussed in the course of exploring possible reasonable adjustments to the job or proposed working arrangements.

Keep notes of what is said at interview and record why a particular candidate was successful, or not. Written records make it make it easier to defend any subsequent allegation that the recruitment exercise was discriminatory. However, under data protection legislation, interviewees have the right to ask to see their interview notes, (subject to access rights) so care should be taken to avoid recording irrelevant comments which might be deemed discriminatory.

Ruth Nodder, principal legal adviser, EEF

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