The very latest thinking in diversity and inclusion in recruitment best practice is examined by Anthony Rees and Leanne Sokolski who are both employment law specialists from Eversheds’ HR group.

The reasons for ensuring diversity and inclusion within the workforce are well known. These include increasing the pool of available talent, making an organisation more attractive to employees and customers, reducing turnover, promoting a better working environment and, of course, complying with legal obligations to protect employees from unlawful and discriminatory treatment on any of the ‘protected grounds - for example, gender, disability and age. For public sector organisations, there are additional obligations to promote equality.

In addition, businesses should not underestimate the adverse publicity and reputational issues which can arise from claims of discrimination. One business which will be well aware of this is US-based clothes retailer Abercrombie & Fitch which recently lost a disability discrimination claim brought by 22 year old female law student Riam Dean. Ms Dean is missing her left forearm and wears a prosthetic arm. She claimed that she was initially given permission to wear a cardigan at work to cover the prosthesis but later told that it did not comply with the Company’s ‘look policy’ and alleged that she was then instructed to work in the store’s stock room, out of sight of customers. Ms Dean is reported to have been awarded compensation of just over £9,000 but the case may well have cost the retailer far in excess of this in terms of the adverse publicity the case generated.

Over the last few years, I have seen an increase in relation to queries and claims arising out of recruitment. So what can your business do to reduce its risks?

First of all, consider your recruitment practices from start to finish. Discrimination issues can arise, not just in relation to the recruitment of new employees to the organisation, but in relation to internal recruitment and promotions. Note that no particular length of service is required in order to bring a discrimination claim and, obviously, job applicants can bring claims too.

Think about discrimination at an early stage. Whilst few employers are likely to openly discriminate, could your adverts discriminate indirectly? Are the criteria set out in your job description/role profile genuinely necessary and are candidates assessed against those criteria? For example, a requirement for a particular number of years’ experience which cannot be justified, could be challenged as being discriminatory on grounds of age on the basis that it places younger candidates at a disadvantage.

Are the staff that carry out short listing and/or conduct interviews trained in doing so? Have they received diversity training? Whilst the provision of diversity training is not an automatic defence to discrimination claims, it may assist, both in terms of avoiding misunderstandings that lead to claims and in putting together a defence to such claims.

Do you offer to make reasonable adjustments for disabled candidates? This duty arises not just in relation to the role itself, but also in your recruitment arrangements. For example, are you prepared to hold an interview in a ground floor room if a candidate cannot use the stairs and there is no lift? Have you considered allowing dyslexic candidates more time to complete psychometric testing? Good practice here, both to encourage applications from disabled candidates and to allow the organisation time to make any adjustments, is to ask candidates to contact you at an early stage if they may have a disability and/or require adjustments to be made.

Where candidates are unsuccessful, consider carefully how feedback is provided to them. The provision of written feedback avoids later arguments about what was or was not said but can be seen by some businesses as being too formal and/or too much of an administrative burden. However, it is a good idea for the person giving the feedback to do so consistently and to document exactly what was said. Clear, constructive feedback at this stage may, in some cases, nip potential employment tribunal claims in the bud.

Job applicants and/or existing employees who are dissatisfied with a decision not to appoint them may serve a discrimination questionnaire. These allow individuals who believe they may have been discriminated against to obtain information about the treatment in question in order to decide whether to bring legal proceedings. If an individual decides to bring proceedings, an employment tribunal can draw adverse inferences where it considers that the respondent deliberately and without reasonable excuse failed to reply to a questionnaire within the eight week time limit. Do not underestimate the time it can take to draft a response, especially where there are numerous questions or the questions are particularly searching.

Harsh penalties apply to employers who employ illegal workers and employers should have in place a procedure for checking that workers have a legal right to work in the UK. However, such procedures must not discriminate, for example, by requiring particular individuals or racial groups to produce evidence of identity, where others are not required to do so.

Don’t forget about your existing employees. In terms of internal recruitment, one common mistake amongst employers is to fail to put in place a system for keeping employees who are away from the business on maternity leave or long-term sick leave due to a disability aware of job vacancies and their right to apply for those vacancies. This failure can lead to both discrimination claims and the loss of valued employees.

Whilst sometimes claims are an inevitable part of running a business, in many cases, such claims might be avoided if an organisation has in place clear and consistent policies and practices or are aware of some of the potential pitfalls of their actions.


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