Avoiding Discrimination in the Recruitment Process

Ok, so discrimination is a hot potato of a subject which is often met with audible mumblings and grumblings so we start with a plea of ‘don’t shoot the messenger!’ This blog is aimed to raise awareness and avoid not uncommon pitfalls.

Never before has society been more aware of discrimination and the negative impact it has on all aspects of life. Quite rightly, the law takes acts of discrimination very seriously and, as with all matters pertaining to employment law, ignorance is no defence when it comes to the crunch! In terms of equine recruitment, it’s fair to say, there can be, all too easily, some blurring of lines between the requirements of a job role and what would be legally labelled as discrimination.

The law which says you mustn’t be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful and affected candidates can take action in the civil courts. If upheld, such claims can result in hefty fines!

 

How is discrimination defined?

Under the Equality Act it’s unlawful to discriminate against a person on the basis of the following “protected characteristics”:

• Age. This refers to a person of a particular age, such as somebody who is 18 years old, or to a group of people who are in the same age group, such as people who are aged 40 and over.
• Disability. A person is considered disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
• Gender Reassignment. This applies if a person wishes to undergo, is undergoing, or has undergone a process to reassign their sex.
• Marriage and Civil Partnership. Any person who is married, whether that be to someone of the opposite sex or the same sex, or a civil partner.
• Pregnancy and Maternity. This applies when the woman is pregnant, and the period after she has given birth.
• Race. A person’s skin colour, nationality, and ethnic or national origins.
• Religion and Belief. This includes religion and any religious and philosophical beliefs, as well as a lack of belief (Agnostic or Atheism).
• Sex. Whether a person is a man or a woman.
• Sexual Orientation. This refers to a person’s sexual orientation towards people of the same sex, people of the opposite sex, or people of either sex.

 

What can employers do to avoid discrimination when recruiting equine staff?

Firstly, discrimination doesn’t only apply to the job advert, employers must also be mindful of being intentionally or accidentally discriminatory when rejecting enquiries and applications from candidates so, while the following advice refers to the job advert, the same must be kept in mind for all communication with candidates.

When advertising a job vacancy it isn’t just the author of the advert who is held accountable for any cases of discrimination within the advert – the advertising platform can also be held accountable. This is just one of the reasons why The Grooms List hold job adverts pending review before publishing them – should an employer unwittingly type something discriminatory into their advert (and often they do!) we can advise and help reword the advert before it goes live. We are keen to help improve the recruiting process within the equine industry, and we don’t want to see anyone fall foul of discrimination laws through a simple mistake and of course, we don’t want anyone to be on the receiving end of discrimination either!

Knowing what is and isn’t acceptable to say in your advert is hard. Many employers will type a to-the-point advert, stating strict requirements to avoid having to sift through unsuitable applicants. While this is an understandable tactic, it could lead to dangerous ground! It’s probably better to describe the genuinely essential requirements of the job role than to describe your ideal candidate! Besides, you are far more likely to find your ideal candidate by opening up your search to more applicants.

In the event of a complaint from a candidate resulting in legal action, the employer must prove “objective justification” for advertising for and rejecting applications from specific people or groups of people with protected characteristics. When writing your job advert and communicating with candidates, being mindful of your objective justification for your requirements will help you to avoid inadvertent discrimination.

As we advise in our article How to Write an affective Job Vacancy Advert, prepare to write your job advert – don’t just wing it. Be clear in your mind about your ‘Must Haves’ and your ‘Nice to Haves’. If your requirements aren’t a necessity of the job role then, in certain circumstances, it could be interpreted as discriminatory to advertise the need for a candidate who meets your requirements! That being said, it’s fair to say that the majority of discriminatory language will be stumbled into rather than a calculated requirement.

 

Identifying potential discrimination in the recruitment process

This is something that is difficult to offer hard and fast advice on and very easily leads to a legal minefield. For this reason, we can only highlight matters that could potentially be interpreted as discrimination – there is no definitive list of acceptable and unacceptable words and phrases to use! However, by focussing on the context of the requirement and wording, as well as keeping in mind your objective justification for your requirements, it can be much easier to avoid a potential legal minefield.

 

Common phrases used in equestrian job vacancy adverts

Head Girl / Head Boy / Head Lass / Head Lad; instead, use “Head Person”.

Stable Lad / Stable Lass; instead, use “Groom”

Man Friday / Girl Friday / Right-Hand-Man; instead, use “Person Friday” or “Right-Hand-Person”

Handyman; instead, use “Handy-Person”

Second Man; (usually used in the Stud industry) instead, use “Second Person”

 

Direct discrimination. Job adverts that specifically state that the employer will only consider candidates who match certain criteria, therefore others need not apply. Common examples within the equestrian industry:

• advertising for female candidates because most of your existing team are female and vice versa
• advertising for male candidates on the assumption that females will not have the physical strength for the job role
• advertising a role specifically to job seekers of a certain age or under, e.g. a trainee role, or because the salary budget only allows for younger National Minimum Wage bands
• advertising a role with a salary or salary range that does not meet the National Living Wage, therefore excluding anyone aged 21 or over from applying
• advertising a role to job seekers of a certain age or over, e.g. a senior role; “This is a role that requires maturity and responsibility, so you must be at least 25 to be considered” – it’s fair to say that no one can offer objective justification that a younger person couldn’t be just as mature and responsible.
• “Seeking a mature, reliable candidate…” is an interesting one. It can be interpreted as referring to older candidates, and it also leaves a blurred line on who should or shouldn’t apply – what defines these characteristics? It might be that the advertiser means mature with regards to attitude and behaviour rather than age, but within employment law and, indeed, within employment contracts standards of behaviour are automatically included in the implied terms. Therefore it could be difficult to provide objective justification for advertising specifically for these characteristics in a person and is probably better to avoid such detail in the job advert.

 

Indirect discrimination: this is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The Equality Act says it puts a group of individuals at a particular disadvantage. Job adverts that don’t actually state that you only want to hear from a certain group or type of people, but set criteria that make it impossible for a certain group or type of person to apply. Unless you can offer a justifiable reason behind your criteria, you could be at risk of breaking the law. Examples of this might be advertising a job role for school leavers, using terms like “10 years’ experience” or using the phrase “young person”, thus excluding everyone else from applying. Instead, use phrases like “highly experienced” when it is a genuine requirement of the job.

 

Discrimination by association: directly or indirectly discriminating against a person who has an association with a person who has a protected characteristic. This might be against candidates who have a partner, and/or children. It may seem reasonable that, because the equine industry notoriously requires long working hours, overtime to care for sick or injured horses, or running late after a show, an employee with a partner or children might not be ideal. But when it comes to the crunch, you probably won’t be able to offer objective justification that an employee with such commitments outside of work would be unsuitable for the job!

 

Questions that cannot be asked during the recruitment process!

Employers might be breaking the law if they ask a candidate about their:

• Relationship status
• Whether the applicant has children
• Health or disabilities (you are allowed to treat disabled applicants favourably (positive-discrimination), but cannot exclude disabled/able-bodied candidates from applying)
• Applicants do not have to divulge spent criminal convictions, and these cannot be considered when reviewing an application (there are some areas that are exempt from this rule – please do seek advice if you are unsure)

 

Beware of researching applicants on social media!

It may seem like a good idea, but it’s actually considered an invasion of privacy for employers to research candidates social media presence and a candidate’s online activity cannot be considered or cited as a reason for rejecting an application from them!

 

When discrimination is necessary

Genuine Occupational Qualifications (GOQ) were introduced under the Equality Act 2010 and exist for when the nature of a particular job causes a protected characteristic to be the reason for choosing one applicant over another. For example, if a live-in job provides single-sex shared accommodation. Specifying for a protected characteristic must be necessary, not simply preferable.

A job advert must focus solely on the skills that are needed to perform the job and can only mention personal characteristics if they are specific requirements for the job. However, you must state why only certain people should apply/not apply. An example within the equine industry is riding height and weight. If you are a racing yard or you have ponies you may need people who are under a certain height and weight to ride them, in which case you can prove objective justification. However, the job role must genuinely include the requirement to ride, otherwise, it can be interpreted as direct or indirect discrimination.

 

Getting help to advertise a job without discriminating

Anti-discrimination in the equine industry is difficult to be clear on. Advertising for and recruiting the right candidates for your job vacancy without discriminating against anyone is extremely difficult. Therefore, if you believe you are justified in advertising for a specific type of person, or excluding a particular group of people, we strongly recommend you take professional advice before proceeding. The UK Government website offers advice-lines to recruiting employers – do make use of them:

Small Business Recruitment Service