Creating a Diverse Workplace in Recruitment

We all know that a diverse workforce is a good thing. There are countless surveys telling us this, and those organisations that have “nailed” diversity are generally more productive and do much better in employee satisfaction surveys. Creating a truly agile organisation, with all employees able to work in a way that makes them productive and engaged, has many positive benefits for business. This article looks at ways in which employers can help achieve this and the legal risks in getting it wrong.

The legal position

From a legal perspective, only protected characteristics are covered by the Equality Act 2010 (“EA”) and can form the basis of a discrimination claim. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The EA applies to all stages from recruitment, throughout employment and post employment.

There are four different types of discrimination: direct, indirect, harassment and victimisation.

Direct discrimination occurs where someone is treated detrimentally because of his or her protected characteristic. Examples of direct discrimination can include:

  • Deciding not to employ someone who has all the skills and attributes to do the job because they tell you at the interview that they have a same-sex partner;
  • Deciding not to interview someone because their name suggests that they are Asian;
  • Deciding not to employ someone of childbearing age because it is perceived that they will take maternity leave.

Indirect discrimination requires a person to show that the practice applied by the employer puts people with protected characteristics at a group disadvantage and they are individually disadvantaged by that practice. An example of indirect discrimination is where the employer requires shift work, including night work. This is likely to put women with child caring responsibilities at a group disadvantage as they are less likely to be able to work nights. If the employer can show a genuine business need for night work and that this requirement is proportionate, a claim of discrimination can be defeated. This illustrates the importance of employers scrutinising the essential criteria for a role and ensuring that each essential criterion is genuinely essential.

Harassment is defined as any unwanted conduct relating to a person’s protected characteristic which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment can take many forms. It may be obvious or violent such as a prolonged campaign of bullying or it may be unintentional or subtle such as a simple one off remark. For example, an interviewer makes a homophobic joke during an interview. This can amount to harassment even when the person is not gay and the interviewer knows that.

Victimisation occurs where someone raises a complaint about an employee’s behaviour and is then treated less favourably for no other reason than because they have made that claim or complaint. In the above example, victimisation occurs where the person interviewed complains about the fact that a homophobic joke was made, and for that reason, is not offered the job.

If someone tells you about his or her protected characteristic during an interview, that disclosure must remain private and confidential. If an employer “outs” someone’s protected characteristic without their permission then such conduct can amount to a breach of that person’s privacy and the Data Protection Act 1998. Furthermore, if appointed, an employee could resign and claim constructive unfair dismissal on the basis they have been discriminated against in the workplace. Therefore, employers must take reasonable steps to ensure confidentiality at work is maintained regarding any disclosures and that policies are in place to address any issues.

If any of the above practices takes place, this can expose an employer (and the alleged perpetrator personally) to the risk of Tribunal claims. There is no requirement for any length of service to make a claim of discrimination.

In addition, whilst the maximum compensatory award for unfair dismissal claims is capped, a discrimination award is unlimited. Therefore, the consequences for employers who get it wrong and fail to prevent discrimination in the workplace can be significant.

Whilst the legalities are important, as we have seen, creating an open and inclusive workplace culture where everyone feels valued and respects their colleagues is key in creating a diverse workplace.

Practical guidance to improving diversity in recruitment

  • Consider recruitment policies to ensure that they focus on fairness and inclusion, ensuring that merit; competence and potential are the basis for all decisions.
  • Do not set selection criteria that prevent certain individuals from applying for the role because of their protected characteristic.
  • Be alert to the influence of conscious and unconscious bias.
  • Avoid asking questions in application forms or at interview about a person’s sexual orientation, marital status or family plans which may be seen as intrusive and imply discrimination.
  • Use standardised interview questions or tests to check skills and competencies needed for the post. The only information, which should be considered by the decision-maker, is whether the person can do the job and no assumptions at the recruitment stage should be made about whether a person will fit into the workplace because of their protected characteristic.
  • Ensure you have an up to date equality policy in place and that all staff are trained to understand their rights, responsibilities and they are treated consistently. Include training on practical examples of unacceptable comments such as jokes and inappropriate language that may be intended as “banter” but could have the effect of being degrading or distressing to another person.
  • Review your dignity at work policy to ensure that all forms of intimidating behaviour, including harassment, are treated as serious disciplinary matters. Ensure that employees are aware that they could be held personally liable if they are found to have discriminated against someone.
  • Adopt a well-communicated value system reflecting the importance of diversity. All employees should be trained to understand and engage with the diversity strategy in the way they do their jobs and work with colleagues.

By Karen Harvie

Karen.Harvie@shoosmiths.co.uk

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