Recruitment, discrimination and data protection

Your hiring decision has a huge impact on the lives of both successful and unsuccessful candidates, so it’s understandable that there’s plenty of legislation that ensures the recruitment process is fair.

Very few of us actively discriminate against others, but almost everyone is prone to unconsciously and unfairly judging others occasionally! This can lead to significant problems during recruitment — you could be accused of discrimination. To avoid this accusation, and the difficult legal wrangles you could encounter, make sure you understand where discrimination might crop up during recruitment.

This might sound tedious, but don’t skip this section! Getting this wrong will cost you more than the rest of the recruitment process combined.

N.B: This guide is for informational purposes only and does not constitute legal advice. For specific legal issues, please consult a qualified professional.

Let’s start with the job adverts.

Avoiding discrimination in job adverts

Discrimination can creep in from the very beginning of the recruitment process. While most employers know that adverts that are directly discriminatory are illegal, there are some less obvious ways your job advert might be discriminatory.

First, wording. Avoid words like ‘mature’, ‘dynamic’, or ‘youthful’, or phrases like ‘recent graduate’ or ‘school leaver’. These words and phrase are potentially discriminatory on the basis of age. This language alone may not be enough for rejected candidates to successfully claim they were discriminated against, but the wording coupled with other aspects of the application process may allow them to build a case against you.

There’s also a risk in stating that candidates must have x years of experience within your job advert, given that you’re effectively excluding young candidates from proceeding with their application. Instead, phrase your search in terms of achievements and responsibilities.

But it’s generally fine to ask for a certain number of years or months of experience so long as you can reasonably justify it. This is far more difficult (if impossible) to do when you start to ask for anything more than two or three years of experience. Is a candidate with only five years’ experience really any less capable than a candidate with seven or eight?

It gets even more difficult to justify requiring a period of continuous employment. At this point, you don’t only risk age discrimination, but sex discrimination (women are more likely than men to pause their career to raise children).

Finally, be extra careful when you require employees with specific language skills. Never say ‘native French speaker’, instead say ‘fluent French speaker’. It’s discriminatory to discount candidates of a certain nationality if they are just as fluent in the language you require as a native speaker.

There are some instances where you may favour one group of candidates over another — this is called positive action — but you need to be extremely careful and read up on the rules before going down this route.

Avoiding discrimination when reviewing applications

The information candidates typically provide at the application stage opens the door for more discrimination. After all, you know their name, and by extension, can make a good guess at their gender. Certain names may also be associated with a specific race or other group. Even though you can’t ask for an employee’s date of birth (unless the role requires employees to be over a certain age), it’s easy to figure out their age through other parts of their application — such as the dates they attended university or school.

Of course, few employers would admit that they discriminate based on the information provided in CVs and applications — but unconscious bias still occurs.

In the workplace, unconscious bias is when an individual unintentionally favours others because they’re alike. We tend to be drawn to other people who look like us, or share our values.

In recruitment, unconscious bias can spell problems when it involves protected characteristics like race or age — you may end up discriminating against certain applicants.

These pointers can combat unconscious bias:

• Be aware. Knowing that unconscious bias is a real phenomenon is the first step to minimising its impact.
• Never rush selection decisions or rely on gut feelings.
• Reject applications based solely on evidence
• Sift through applications with a colleague (preferably of a different age, background, or gender), instead of by yourself.

Some companies are going one step further and introducing anonymous hiring practices, also known as blind recruitment.

What is blind recruitment?

Blind recruitment involves removing personal information from applications and CVs. At a basic level, no names are used — but depending on the scope of the policy (and the types of bias you are trying to eliminate) you might also remove education, interests, company names, and personal statements.

Usually blind recruitment only applies to the opening stages of the application process, because it’s more difficult to anonymise phone or in-person interviews. But blind hiring can certainly help you create a shortlist of candidates without unconscious bias interfering.

In practice, it can take some work for a small business to implement blind hiring, as you’ll need to create your own application system which lets you temporarily hide personal details, or ask a third party (an individual or a software provider) to anonymise applications for you.

Still, it’s an option that’s available to you if you’re looking to reduce bias.

Social media screening

Using social media to screen candidates can be both helpful and risky. While many businesses use it to check qualifications and look for any criminal (or other damaging) behaviour, the mass of data you find can lead to discrimination.

You’ll find out information that the candidate would otherwise not disclose during the recruitment process, such as their religion and sexuality. You could find out about disabilities, or whether or not they have kids.

Once you’ve seen this information, it will probably influence your selection decisions — at least on an unconscious level.

To avoid accusations of discrimination, you must be able to show that the reasoning behind every shortlisting and selection decision has nothing to do with information about protected characteristics that you uncovered during your social media search.

If possible, have another member of staff with no authority over the hiring process (or a third party) look at candidates’ social media information and redact any information that points to protected characteristics.

We also recommend pushing social media screening to the end of the recruitment process, when a conditional offer has been made, instead of using it at the application stage. If you uncover anything worrying during your social media search, contact the candidate and ask them to explain it. You’ll find out the wider context of the remark and how the candidate regards it now.

Avoiding discrimination in interviews

The final stages of the recruitment process are important to get right. Remember: rejected interviewees will be more likely to bring a discrimination case against you than candidates who left the process at any earlier stage.

It’s relatively easy to stay on track here, particularly if you opt for a structured interview where you ask candidates the same questions in the same order. You’ll also need a clear set of selection criteria, and to keep a record of candidate responses. You can use our interview record template to track and compare answers.

When drafting your questions, make sure to avoid these...

• What country are you from?
• Are you religious?
• Do you have children?
• Do you plan to have children in the near future?
• How old are you?
• When do you plan to retire?
• How often do you take time off sick?
• Do you have any health problems?

We hope it should be obvious why you shouldn’t ask the above questions, but if not, it’s simple: these questions are related to protected characteristics, not the candidate’s ability (or inability) to do the job.

For example, you might want to ask about religion to find out if you have any candidates who won’t work on the Sabbath. Instead, ask candidates if they’re available to work on all the days specified in the job advert. There’s no need to bring religion (or childcare) into it.

The final decision

If you’ve followed these guidelines, you should have a near-complete understanding of all remaining candidates’ suitability for the role. You should able to directly compare their skills and experience so you can make a hiring decision backed with evidence.

And if you do get taken to an employment tribunal, presenting paperwork from every stage in the recruitment process will certainly help you make your case.

Data protection considerations

You collect plenty of personal data (contained in CVs and application forms) throughout the recruitment process, which means that you need to follow data protection regulations, namely the General Data Protection Regulation (GDPR).

The GDPR is intimidating — but in terms of recruitment, there are only a couple of major pitfalls you need to avoid.

First of all, ensure that you’re transparent about data collection. Make sure that your business (or the recruitment agency you use) is clearly identified in the job advert, and state on your advert or application form that you’ll use data for recruitment purposes only.

It’s OK to collect personal data for “specified, explicit and legitimate purposes” — in this case to review and process candidates' applications. However, you can’t then use the data for another purpose (such as marketing) or keep the data once it’s no longer required for recruitment.

You also need a candidate's consent if you want to process sensitive personal data.

And if you use any kind of software during the recruitment process (such as applicant tracking software), it’s your responsibility to check that the providers are compliant with GDPR rules.

Don’t forget that candidates now have increased personal data rights. For example, you need to be able to provide candidates with a copy of all their personal data that you hold, and resolve any inaccuracies.

Finally, if you use software to automatically screen candidates’ CVs or application forms, you may fall foul of the GDPR. You can’t discard applications “based solely on automated processing”, as many larger employers have been guilty of in the past. At the very least, a human must review flagged applications before they are rejected.