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Protection from discrimination applies right from the start of a recruitment process and not just when a person is actually employed. Therefore, the information which is contained in a job advertisement, application forms and the questions asked of candidates during an interview process must be carefully considered to ensure candidates are not discriminated against based on their personal life or circumstances.
To help avoid issues arising during an interview process, it is important that all shortlisted candidates are asked the same pre-employment questions and that their answers are scored consistently by panel members.Care should be taken not to ask any questions about the candidates' personal life unless they are directly relevant to the requirements of the job. However, even then, assumptions should not be made and interviewers should ask ‘open’ rather than ‘closed’ questions to allow the candidate to provide as much or as little information as they choose.
Closed: Tell me about an important goal you have set in the past.
Open: Tell me about an important goal you have set in the past and how successful you were in accomplishing it.
Generally speaking, asking candidates questions about their childcare or living arrangements, or indeed their future plans to get married or to have children, should always be avoided as they are extremely unlikely to be considered relevant to the individual’s ability to perform the job they are being interviewed for. Even when this type of information may be volunteered by the candidate themselves, interviewers should still take care to ensure they are not influenced by that information when reaching their decision on the selection of the successful candidate.
With the rapid growth of social media over the past 10 years, employers have been able to gain access to a considerable amount of information on candidates via blogs or social networking sites which may lead to information on a candidate’s sexuality or religious beliefs being discovered. While background checks are considered by some prospective employers to be important, it can lead to questions being asked if a candidate is rejected on the basis of information uncovered. For example if rejected the candidate may be concerned that this was due to their sexual orientation and that they had been unlawfully discriminated against. If you do carry out checks via the internet then you should make the candidates aware of this and do the same checks for all candidates.
Where employers need to carry out pre-employment immigration checks to establish
whether a person is legally permitted to work in the UK under the Immigration, Asylum and Nationality Act 2006, the Home Office advises that employers carry out checks for all prospective workers, not just for those who may appear to be from an ethnic minority.
Pam Loch, Managing Director of niche employment law practice, Loch Associates Employment Lawyers and Managing Director of HR Advise Me Limited.
Explanation of the legal and regulatory issues affecting small and medium enterprises