In the context of the process of selection of employees, validity is making sure that:

Employers need to be aware of their obligations even before an employment relationship starts. That often means making sure you’re aware of where you stand when it comes to your recruitment process and employment law. Our clients often ask for advice on this area of and so, below, we explore how to ensure your recruitment and selection process is fair, looking at fair hiring practices, positive action and diversity in the workplace.

Jump to:

1. What is fairness in a selection process?
2. Examples of unfair hiring practices
3. Do you have to interview all applicants?
4. Is it legal for an employer to discriminate during the recruitment process?
5. Can a discrimination claim be brought due to an unfair recruitment process?
6. What is associative discrimination?
7. What is positive action in recruitment?
8. How to recruit and retain a diverse workforce
9. How to write an equality and diversity policy
10. How to avoid unconscious bias in recruitment
11. Fair interviewing practices

What is fairness in a selection process?

Fair selection in recruitment must be objective, consistent, and non-discriminatory resulting in the best person being selected for the job. The selection process may involve shortlisting, selection tests such as psychometric testing, assessment centres and interviews. This will depend on the job role, number of applicants and size and resources of the employer.

The particular role being recruited for and job-related selection criteria relevant to the requirements of the role must be carefully considered by the employer before the recruitment process begins. These criteria must be objective so they can be fairly, measured. This means that they must have:

• Content validity (be representative of what is required from the role, in reality)
• Construct validity (measure relevant traits)
• Criterion validity (predict what they’re meant to predict)
• Face validity (it should be obvious to candidates what the tests are assessing)

Testing is just one aspect of a fair recruitment and selection process and should just be a tool used to help employers to sift out applicants who fall below a certain level and do not fit the selection criteria.

If an occupational requirement is necessary to perform the role effectively this should be identified at the beginning of the process, applicants should be made aware of this and those which do not fulfil the requirement will not progress. All those who meet the minimum requirements should stay in the selection process and move to the next stage.

Employers should ensure that, as far as possible, arrangements made during the recruitment process do not put any candidates at a disadvantage in connection with a protected characteristic. Some arrangements may be able to be objectively justified as being a proportionate means of achieving a legitimate aim, otherwise any disadvantage is unlawful. If the employer knows or could be reasonably expected to know that a disabled person is, or may be, applying and is likely to be substantially disadvantaged by the employer’s premises or arrangements, the employer must make reasonable adjustments.

The same staff should be responsible for selection decisions in the same recruitment exercise so that the process is consistent. These staff should be trained in the employer’s equality policy and must understand the employer’s selection criteria. When recruiting, employers should not ask questions about physical disability, pregnancy, sexual identity, religious beliefs, world views, age, or ethnicity, unless the question is directly relevant to the role. If you are thinking of asking a question relating to these topics, you may want to seek legal guidance from one of our specialist employment solicitors, first.

Examples of unfair hiring practices

Any practices which are discriminatory will be deemed unfair. Employer’s cannot ask candidates about protected characteristics, whether a candidate is married, single or in a civil partnership, or whether they have children or plan to have children. However, an employer can ask a candidate about health or disability if:

• There are necessary requirements relating to the job that cannot be met with reasonable adjustments.
• To consider if someone needs help to take part in a selection test or interview.
• Or you’re using ‘positive action’ to recruit a disabled person.

There is no obligation for someone to advise of a spent criminal conviction and an employer cannot discriminate on the basis of a spent conviction. An employer also cannot refuse to employ someone because they are a member of a trade union or insist someone joins a trade union before employing them.

A job advert must not discriminate and in order not to discriminate on the grounds of age, phrases used like ‘recent graduate’ or ‘highly experienced’ can only be used when these are actual requirements of the job.

Where an employer chooses to advertise might also be indirectly discriminatory. For example, if an advert for a job is only placed in men’s magazines but there is no specific requirement for a male in that role, this may indirectly discriminate against females and is an unfair hiring practice. Therefore, the wording and placement of job advertising should be considered carefully by the employer before being finalised.

Do you have to interview all applicants?

No. There is not a requirement to interview all applicants. An employer should only interview those candidates that fit the specific objective skills and experience that the company is looking for to fill the specific role being recruited for.

Employers should not deny an interview to a candidate based on a discriminatory or other unlawful reason, but otherwise an employer has discretion over who it chooses to interview, including the number of candidates (which may only be one individual, for one role, if that individual is the only applicant that fits the criteria set out for the role).

Is it legal for an employer to discriminate during the recruitment process?

No. Discrimination, victimisation and harassment during the recruitment process is covered under the Equality Act 2010 in relation to nine ‘protected characteristics’:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race religion or belief
• Sex and sexual orientation

This means that during the recruitment process (whether when advertising a role, when planning for interviews or assessments, or when considering what is asked at interviews or training for a role) an employer must not discriminate against or victimise a candidate. Ensuring non-discrimination must be considered at every step of a fair recruitment and selection process, such as:

• The arrangements an employer makes for deciding who to offer employment to. For example, the format and content of application forms, the physical arrangements, location and timing of interview, and the job and person specifications.
• The terms the employer offers the candidate employment on.
• An employer cannot harass a candidate in relation to employment by it, where a candidate has applied for a role with that employer.

Can a discrimination claim be brought due to an unfair recruitment process?

A claim for discrimination or harassment can be brought in an Employment Tribunal by a job applicant, against the employer and/or any employees and recruitment agents who discriminated or harassed the applicant during the recruitment process.

If employees have discriminated during a recruitment exercise, even if those acts went against instructions given by the employer, the employer can be held vicariously liable for the employee’s actions.

The employer will have a defence if it can show that it took ‘all reasonable steps’ to prevent the discrimination. That is why it is critical to ensure that your business has a clearly drafted recruitment policy and all staff involved in recruiting are thoroughly trained in this area.

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The employer can also be vicariously liable for the actions of employment consultants or agencies to carry out its recruitment with the employer’s authority. However, an employer will not be liable for unlawful discrimination carried out by agents if the agent acted against the employer’s express instructions not to discriminate. If the employer is liable, the agent responsible for the discrimination may also be held to have knowingly helped the employer.

What is associative discrimination?

Associative discrimination is where an individual is treated less favourably because of a connection with somebody who has a certain protected characteristic.

Many employees keep their home and family life private and so what might seem an innocent joke or comment, may have a bigger impact if a candidate or employee does not have a protected characteristic themselves, but takes offence because of their association with friends or family members who have protected characteristics.

There is no need for there to be a provable close personal relationship between the candidate/employee and the person with the protected characteristic for there to be discrimination by association and so this goes wider than them taking offence because somebody close to them has a protected characteristic, it can just be a distant colleague or someone that employee has only met a couple of times.

Employers would be well advised to train managers and human resources so that they are fully aware that it is possible to discriminate by association and to make staff aware of the sort of behaviour that constitutes discrimination by association, which could lead to claims against them personally, and against the employer. It is also a good idea for employers to review workplace policies and where applicable to refer specifically to discrimination by association. Clear guidelines as to when workplace ‘banter’ goes too far can be helpful to demonstrate to staff when conversations should be halted.

What is positive action in recruitment?

Positive action is allowed to be taken by employers where people sharing a protected characteristic suffer a disadvantage connected to the characteristic and have particular needs or are disproportionately under-represented in that workplace. Employers are not obliged to take positive action but can choose to take positive action in two ways:

• The general positive action rule can apply where an employer reasonably thinks people with a particular protected characteristic are disadvantaged, have different needs or are disproportionately under-represented. An employer can take proportionate measures to enable or encourage people with that characteristic to overcome that disadvantage, to meet their needs, or to enable or encourage their increased participation.
• Since 6 April 2011 positive action in recruitment and promotion also applies where an employer reasonably thinks people with a particular protected characteristic are disadvantaged or disproportionately under-represented and treats them more favourably than others in recruitment or promotion, as long as the person with the relevant characteristic is ‘as qualified as’ the others. This second form of positive action is more controversial and may lead to discontentment amongst those who do not have a protected characteristic, particularly in respect of promotion and so employers should take a holistic view as to whether this would be in the best interests of the company.

How to recruit and retain a diverse workforce

To recruit and retain a more diverse workforce and get a wider range of talent and better understanding of diverse national and international markets, an employer may try positive action such as: recruitment drives in under-represented communities, targeted job advertising to unrepresented groups and even trying to create more flexibility or family friendly working hours for those with caring responsibilities.

A diversity policy goes beyond the minimum legal requirements not to discriminate, but genuinely looks to contribute to employee wellbeing.

How to write an equality and diversity policy

A well-drafted diversity policy should:

• Promote equality of opportunity and diversity within the communities the employer works in.
• Treat customers and employees fairly and with respect.
• Ensure customers have access to reasonable adjustments or additional support to enable them to access benefits and use services.
• Build a workforce reflective of customers.
• Use equality data to help prevent discrimination, bullying and harassment where possible and enforcing policies by effectively taking action where required to ensure there is no future unacceptable behaviour.
• Ensure regular and thorough training and guidance on diversity and equality policies for all staff, particularly HR and management.

How to avoid unconscious bias in recruitment

Unconscious bias is prejudice that people are not aware of and can be a problem in recruitment, as those individuals involved in the process are unintentionally recruiting those similar to themselves due to unconscious snap judgments made about people and situations.

It is important that those recruiting are aware of unconscious bias and are not just recruiting people from similar backgrounds, or with similar experiences, to themselves. Where possible a panel of two or three individuals (preferably from different backgrounds and with different experiences) should conduct interviews to limit the effect of this.

By accepting that unconscious bias exists, and that people naturally use subconscious mental shortcuts, and by promoting an open dialogue where individuals communicate where they feel there has been unconscious bias by another, employers can easier reflect on whether these inappropriately affect decision-making during their recruitment process.

If this is a potential issue, control measures can be devised and put in place to minimise the impact of unconscious bias. This may be by having several rounds of interviews and tests or by having a panel interview, for example, to ensure the recruitment process remains objective and fair.

Fair interviewing practices

This can be an area where employer’s slip up, and it may be that smaller business’ might want guidance from an external professional before holding interviews or even for a specialist external to your business to form part of a panel during the interview, to ensure a fair recruitment process, and keep notes. An employer will need to choose whether one individual or a panel will interview, in any event.

The chances of unlawful discrimination during the interview process can be avoided by staff being trained effectively and regularly so that they do not make stereotypical assumptions, so that they understand the objective scoring required for a role and how to apply the method correctly and so that they ask only relevant questions to the job role on offer. Irrelevant questions about lifestyle should not be asked unless specifically relevant to the job. A woman is under no obligation to declare her pregnancy when being interviewed and if she volunteers that information it should not be considered when deciding her suitability for the job.

The EHRC Code helpfully provides guidance on interviewing, stating that: ‘if interviews are carried out on the basis of any application form, job description, person specification, the agreed weight to be given to each criterion and the results of any selection tests, an employer will ensure that all applicants are assessed objectively, and solely on their ability to do the job satisfactorily’.

Interviews should be arranged fairly to allow all applicants an equal opportunity. Flexibility for those who may have caring responsibilities, religious considerations or disabilities which require certain times for interview or adjustments to be made to an interview, should all be considered from the outset. The ECHR Code suggests that employers should ask interviewees when inviting them for interview or at very least on the day of the interview whether they have any special requirements, and where possible employers should try to accommodate these.

About our expert

Ella Bond

Senior Employment Law Solicitor

Ella joined Harper James as a Senior Solicitor in January 2020, having previously worked at top 50 West Midlands law firm Shakespeares (now Shakespeare Martineau). Having qualified in 2007, she is highly experienced in the field of Employment Law, working with a vast range of clients from start-ups to large national and multi-national companies.

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