UK: Right Person, Right Job?

Last Updated: 10 November 2009
Article by Speechly Bircham Employment Group

Robust recruitment processes are a must for volunteer selection as well as paid employees. Neil Gill's practical guide explains why.

Good recruitment decisions are critical and a key step in the process is the face-to-face interview, allowing you to evaluate the candidate and obtain important information. A badly-conducted interview not only results in poor selection decisions, but can land you in court. Each stage of the selection process should be checked to optimise your chances of finding the right person and to reduce the chances of you being sued by an aggrieved candidate.

Before Advertising

Policies: They Are There To Help You

Consider any equal opportunities or recruitment policies your organisation has in place and factor any relevant requirements into the interview process. You should follow these policies but, when you feel you need to deviate from them, document any decisions to do so. Ensure your staff involved in the recruitment process, especially the interviewing element of it, have had equal opportunities training. Ideally any training should be adapted and tailored to the recruitment process.

Competencies: Which Ones And Why?

When compiling the job description you will know what you are looking for in a candidate in terms of specific experience (e.g. volunteering) and skill sets, but you should identify which of these are 'essential' for the job and those which are merely 'desirable' so that you can assess whether the requirements:

  1. can be objectively justified by reference to the job in question; and
  2. indirectly discriminate against any groups of employees.

Check whether any requirements for specific qualifications, working hours, travel, age ranges or dress are necessary for the job and can be justified.

If you consider a particular characteristic is required for the job (e.g. you believe a fluent Italian speaker is required) document your decision and specify the characteristic in the advert. This may be all important when a highly competent candidate is rejected on the basis that they only speak French, German, Spanish, English and Mandarin.

Advertising The Job

Where To Advertise?

When you have decided where to advertise the job, check that your choice could not give rise to complaints. Should it be advertised internally and/or externally? It may be best practice to advertise all vacancies externally; however it may be appropriate, and your policy may require you, to advertise internally first. In the current economic climate, you should first consider any existing employees at risk of redundancy before recruiting externally. 1 of 5 Job advertisements include emails, direct mail and in-house notices, as well as advertising to the general public in newspapers and on the TV, radio or internet.

Advertisements should be placed to make the maximum impact, so where you place them will directly impact upon the audience you reach. However, your job advertisement can lead to claims for discrimination if it targets a narrow audience.

For example, it could be discriminatory to restrict the advertisement of a job to a particular religious publication, since potential candidates who belong to other religious or belief groups are much less likely to see it. This can leave some organisations in a difficult position. For example, a religious charity may want to reach a higher proportion of their target audience and so they will place their job advertisements in particular religious publications. Exclusively advertising in a particular religious publication may bring about claims for discrimination, so, unless there are good objective reasons for doing so, charities should be open to a variety of options when deciding where to place advertisements.

What (Not) To Include In The Advertisement?

When deciding how to advertise the role, be sure to refer to the real (as opposed to the perceived) requirements of the role. Gender specific job titles, such as 'handyman' or 'salesgirl', and language that indirectly implies that the job is suited to one sex or the other should generally be avoided. Also, you should be conscious of the risks of stereotypical assumptions based on age in 'hidden messages' in the advertisement. For example, which of the following is asking for older people and which for younger?

'We require an enthusiastic and energetic person, flexible enough to fit in with our fast moving market place, not afraid of challenging the status quo and in touch with the latest thinking'

'Our ideal candidate will need to manage competing demands. He or she should be reflective, and have boardroom presence and gravitas.'

(Examples taken from ACAS Age Guidance1)

As a charitable organisation, you may feel it is necessary to stipulate that your employees should have certain characteristics. For example, a charity which employs counsellors to gays and lesbians may wish to stipulate that job applicants should be gay or lesbian. Likewise, a charity which employs outreach workers at a particular church may want to stipulate that job applicants should practice a certain religion. These stipulations are clearly discriminatory but the charities involved would seek to justify them on the grounds that they are genuine occupational requirements ('GORs') for the roles. Such a justification is commonly referred to as 'the GOR exception'.

Although this can be a valid defence to what appear to be discriminatory practices, you should be cautious when looking to apply it, particularly where the object of your organisation is not the advancement of the relevant minority interest. For example, a Christian organisation providing a nutrition programme across Africa has a primary object of providing nutrition to areas of Africa; not of advancing Christianity. Therefore it is unlikely to be able to stipulate that all job applicants for a job assisting with the distribution of food should be Christian.

Unpaid Volunteer Or Paid Worker?

It is widely acknowledged that the charitable sector relies heavily on unpaid volunteers. When it comes to employment rights, including those in relation to discrimination, these volunteers are not as protected as paid workers. However, aside from being bad for public relations and illustrative of a discriminatory attitude, discriminatory practices in the recruitment of so called 'volunteers' can be unlawful, and lead to litigation, if the role being advertised is not that of an out and out volunteer.

For example, in an Employment Tribunal case2 a marriage guidance charity found itself the subject of race discrimination proceedings after it rejected an application by a Mexican woman (Mrs Armitage) to train to become a 'volunteer' counsellor. If her application been accepted, Mrs Armitage would have had to sign a service agreement which would have provided that:

  • the charity would have committed to providing training, supervision and facilities for the development of Mrs Armitage's skills;
  • Mrs Armitage would have committed to providing a minimum number of hours' counselling; and
  • Mrs Armitage would have been reimbursed for expenses incurred but, as a 'volunteer', she would not have been entitled to remuneration.

Counsellors at the charity ceased to be 'volunteers' (and so became entitled to remuneration) after they completed three years' training and if they left the charity without good cause before clocking up 600 hours' counselling they were obliged to pay back part of their training costs.

The tribunal held that, had the claimant's job application been successful, there would have been a contract between her and the charity, the dominant purpose of which was the provision of work by Mrs Armitage for the charity. Therefore, Mrs Armitage was entitled to bring her discrimination claim (as an applicant to become a 'worker' as opposed to a 'volunteer'). As a volunteer Mrs Armitage would not have been protected by the Race Relations Act. Whilst this is a specific set of facts and every situation will be slightly different, when you come to advertising the role, you should consider whether it is for an out and out volunteer.

Send Out The Right Message

For charitable organisations it is especially important to be able to demonstrate that you 'practice what you preach' and your relationship with employees and prospective employees is a prime opportunity to do so.

If you are working towards being an equal opportunities employer, let people know by featuring it in your advert. When using an equal opportunities monitoring form, you should make sure this is separate from the application form.

Shortlisting

The Interview Panel

Consider any prior connection between any of the candidates and any members of the interview panel which might suggest a conflict of interest. If a conflict exists, consider removing the panel member or ensuring that there is at least one other panel member who does not have prior knowledge of the candidate.

Also, ensure panel members are under an obligation to declare any conflicts of interests. This obligation should be explained to interviewers in advance of the recruitment process and preferably as part of their formal training.

Aptitude: To Test Or Not To Test?

If you think psychometric testing will be desirable for the job, try to ensure that the test used is not indirectly discriminatory in any way. This is often easier said than done but the Information Commissioner's Employment Practices Code3 suggests that thought should be given to:

  • whether the tests are necessary and proportionate;
  • whether the tests will involve any invasion of privacy;
  • how feedback may be given; and
  • how the data generated is to be stored.

A thorough consideration of these factors may help to flag up any potentially discriminatory effect of the tests. For example, why use a psychometric test involving word association when a fluent English speaker is not required for the role? Psychometric testing should not be the sole method of assessment and all candidates should be informed in advance if these are to be used as testing methods.

Sing From The Same Song Sheet!

The panel should agree selection criteria based on the job description and person specification. When drawing up a shortlist of candidates, mark them all against the selection criteria.

Notify the shortlisted candidates of any tests they will be required to undertake as part of the interview process and ask them if they require reasonable adjustments to be made. This will satisfy certain obligations under the Disability Discrimination Act. Not all candidates will be comfortable enough to fully divulge any disabilities they have at such an early stage. You should be prepared to adapt if you have not previously been told of a disability which comes to your attention further down the line.

It is a good idea to agree a list of questions to be put to each candidate which are stated on the interview form. This will help ensure that candidates are not detrimentally affected by any bias or negative weighting.

The Interview

Consistency Is King

Ideally, all candidates should be asked the same questions and their answers should be scored consistently by all members of the interview panel. However, you can ask supplementary questions, seek clarification and explore the candidate's answers. Take notes of candidates' answers and the interview panel's impressions and retain those beyond the end of the process. A disgruntled candidate may well make their argument heard a number of months down the line.

Close And Personal

Try not to give in to the temptation to ask questions about the candidate's personal life, unless the questions are directly relevant to the requirements of the job. Even then, don't be quick to make assumptions about the candidate's personal life or preferences on any discriminatory ground. Try to keep your questions open. Any number of seemingly innocent questions could be taken the wrong way and lead to potential claims. Some examples might be:

  • Are you a UK citizen?
  • Where did you grow up?
  • Are you married and do you have children?
  • How many sick days did you have last year?

Of course, many candidates will quite willingly volunteer this kind of information but the key is not to actively seek it.

Feedback Is Fine

Don't be afraid to provide feedback to candidates whether orally or written. Just keep it objective and give it in accordance with any written policies you may have in place (which ideally you have checked in advance). Never give a particularly good candidate 'the nod' before you have completed the whole process as it may be taken as a formal offer of employment. Take the time to assess your notes and compare them with the rest of the panel before making a decision. Remember, as far as recruitment goes, it's an employer's market.

Footnotes

1. www.acas.org.uk/CHttpHandler.ashx?id=588&p=0

2. De Lourdes Armitage v Relate and ors, IT Case Number: 43438/94 (11 October 1994).

3. Available from www.ico.gov.uk

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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