Unconscious bias and discrimination in the recruitment process – pitfalls and tips

13 May 2014

The Bank of Queensland has made a splash in the news recently, following its statement that it will take identifying information including name, age, gender and address, out of CVs before their recruitment process for senior and executive roles begins.  The purpose of this policy is to attract more women to senior roles and to avoid unconscious bias in recruitment.

It is generally good practice for a UK company to safeguard itself against accusations of discrimination by introducing a policy of removing information which is irrelevant to the candidate’s ability from CV, application and recruitment processes. The Equality Act extends protection against discrimination to job seekers and not just employees, so it is important to be mindful of potential discrimination issues in the recruitment process. The EHRC Code on recruitment suggests that employers should put the personal information section of an application form on a separate page which can be detached during the recruitment process so that it cannot be used to disadvantage applicants. 

Some other pitfalls and tips on how to avoid discrimination issues during recruitment are:

  • Avoid loaded wording in job advertisements  – phrases such as “mature”, “younger and energetic” are likely to be age discriminatory.  They also are not really relevant to the job;
  • Avoid requiring a certain level of experience – the Employment Tribunal in Rainbow v Milton Keynes Council decided that a criterion that a teacher have 5 years of experience was age discrimination;
  • Avoid health requirements such as a minimum level of sickness absence or carrying out medicals before offers have been made and accepted – this can be discrimination against disabled people.  It may be possible to make offers conditional on medical examinations but care should be exercised;
  • Avoid limiting applicants to those who have a work permit or permission to work in the UK – this is race discrimination.  However an offer can be conditional on the applicant having or obtaining the relevant immigration status.

To avoid those perhaps less obvious forms of discrimination, some companies have adopted unconscious bias training.  This training aims to raise awareness of preferences people may hold but of which they are not aware.  Whilst the training itself is not a panacea, heightened awareness about bias and the desire and help to eliminate that bias can be useful steps in achievement of diversity and the avoidance of discrimination.  Offering this training to those involved in the recruitment process can also strengthen an employer’s reasonable steps defence to a discrimination claim.

Until relatively recently orchestras were almost all male affairs.  Those appointing to orchestra’s repeatedly stated that choices were based solely on the quality of play and nothing to do with gender.  However, when applicants were required to play behind a curtain the number of women started to rise rapidly.  Maybe the Bank of Queensland’s policy will have an equally dramatic effect.  However, it is likely that less overt forms of discrimination are also holding women back including taking time out or time when they are not pushing for senior roles to care for children.  If a CV with no time out and showing a linear career rise is required, simply screening out overt discriminatory criteria is not likely to make a big impact or increase the number of senior women.

For further information, please contact a member of the employment law team.

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On May 20th 2014 Duncan Elliott commented:

Hi

Great article. I'm interested in your comment, "Avoid limiting applicants to those who have a work permit or permission to work in the UK – this is race discrimination. However an offer can be conditional on the applicant having or obtaining the relevant immigration status."

Do you think, for example, ticking the box on Reed.co.uk that says 'limit applications to those who have the right to work in the UK' is active Race Discrimination? A few of my clients are recruitment agencies and would do this habitually. I expect most employers do too.

Regards

Duncan

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