18 Apr 2024

Recruiting without fear

By Adam Bernstein

Remarkable as it sounds, a recent European Court of Justice (ECJ) case involved a German who applied for jobs in which he was not interested. He was only after the rejections which gave him an excuse to launch a discrimination claim that sought compensation. In ruling on the case, the ECJ said that discrimination law protection only applies where an individual has a genuine interest in the job they’re applying for.

When preparing the wording of the advertisement, referring to the job description and person specification you have prepared will help reduce the risk of discriminatory language being used. To prevent mistakes being made inadvertently, have someone review the wording for you, preferably a member of human resources but, if not, someone from outside of the business to gauge what their first impression of the job advertisement is.

Ideally, interviewers should be trained to conduct interviews with equality in mind, such as avoiding being influenced by stereotypical assumptions relating to an applicant. This is important as to make such assumptions about an applicant’s age, nationality, or any other protected characteristic could be discriminatory.

When arranging the interview, you should ask applicants in advance whether they have any special requirements, for example to assist them with any physical impairments. Once notified of any disabilities, you will be under a duty to make reasonable adjustments to assist the applicant so that they are not put at a disadvantage when interviewed. If you are unaware that the applicant is disabled until it becomes apparent at the interview itself, you are obliged by law to take reasonable steps (known as ‘adjustments’) to ensure that they are not at a disadvantage. For clarity, it is best to ask again at the start of the interview whether the applicant requires any special arrangements and, if reasonable to do so, make any adjustments before the interview begins.

Where possible, interview questions should be structured and based on the application form, job description and person specification. Any questions which do not relate to the employee’s ability to perform the role should be avoided. For example, asking an applicant questions about their plans for children would not be relevant to their ability to do the job and could be perceived as you not wanting to employ a mother which would be discriminatory. If this sort of information relating to a protected characteristic is volunteered by the applicant, interviewers should ensure that they are not influenced by it and do not take it into account when selecting the successful applicant.

The key lesson here is to ensure that you give an applicant no opportunity to launch a claim. Only enquire about those aspects of the employee that relate to the job.