Ever watched the Apprentice? Before it became more concerned with personalities than actual business acumen, I was addicted to that show. I loved everything about the competition, right down to Nick Hewer’s stone cold steely gaze. The last season I watched was in 2012 when entrepreneur Ricky Martin won with the prize started a recruitment company which specialised in STEM fields and that was as far as, I ever thought, I would ever be concerned with Mr. Martin’s recruitment firm.
A couple of years later I came across an article from Hyper Recruitment Solutions’ blog, it was catered to towards the STEM industry but this was more about interview technique and “how to impress the powers that be…” – always helpful to know. Now, I have noticed that, as HRS has grown in the last 5 years, so has their client base and ability to put out fresh content – which this piece primarily reflects on.
A couple of weeks ago, HRS published the results of a survey they recently conducted and titled it “Can Interviewers Ask Personal Questions?”.
Some of the results are quite startling and I think Ricky really should send a mass email out to some of the 2000 people they surveyed showing that some of the questions could potentially land them in trouble and very much infringe on people’s rights under the Equality Act 2010.
It’s important to remember the 2010 Act does not just protect employees, it extends to various situations, including job applicants.
I did ask for the full results of the survey so I could be a bit more comprehensive but no one from HRS got back to me. To be fair, based on some of these statistics, I imagine if the survey wasn’t anonymous, the raw data is probably tightly under guard in some GDPR black hole somewhere. So I have broken down some of the stats for you, which can be seen in the original blog post. [Click here to read the original post]
Age: What year were you born?
55% of the interviewers we surveyed admitted to asking candidates when they were born. 60% stated that they considered this an ‘acceptable’ question.
Seems like a harmless enough question. Realistically, most people put a date of birth on their CV so if it’s not on there you could appreciate that the interviewer might be curious about the omission but legally speaking, an individual’s age should not be part of the recruitment equation without a legitimate reason.
The Supreme Court laid down in the leading case on age discrimination during a recruitment process in Homer v CC of West Yorkshire Police [2012]. I promise, I’m going to keep the legal mumbo-jumbo to a minimum. The Supreme Court sought to elaborate on when discrimination is justified and the test (in a nutshell) is:
Looking at the next protective characteristic can be quite helpful in looking how that test works.
Religion: Will you need time off for religious holidays?
Another very obvious protected characteristic is what faith people chose to follow. Again, this should not really be in the conversation during a recruitment process.
The survey showed 18% of hiring managers understand that it’s illegal to ask questions like ‘Will you need time off for religious holidays?’ 39% said it was inappropriate, but not illegal, while 43% felt that this question was acceptable. For the avoidance of doubt, such a question could easily be considered illegal.
Unless that 43 % had a legitimate reason for those questions, it’s very likely that sort of question, in itself could amount to discrimination. It would be pretty reasonable for Judaism to be a prerequisite for appointing a new Rabbi or a Roman Catholic Head Teacher for a Convent.
Children & Pregnancy: Have you got any plans to start a family?
The survey found that 40% of employers think it’s acceptable to ask if a candidate is planning on taking maternity/paternity leave, while 54% find it acceptable to ask whether the candidate has any children already.
This is considerably more contentious than asking how old someone is and it’s considerably riskier to ask someone this question, without averring that the response would be relevant to the candidate’s success. In fact, a recent YouGov survey {Click here to view survey} taken out this year suggests that 59% of employers believe a woman should have to disclose whether they are pregnant during the recruitment process.
Whether you agree with this or not, asking someone about their maternity, pregnancy or paternity plans is a significant breach of s4 Equality Act which is likely to result in harsh and costly criticism from a Tribunal – the safest route then is to simply not touch the subject.
Health & Disabilities
Example: Are you physically fit and healthy?
In our survey, 53% of hiring managers admitted to asking the question above. But it’s illegal to ask questions about a candidate’s health before offering them a job.
Employers in certain industries may require workers to pass a physical exam before starting work. The likes of the Emergency Services or the Armed Forces would require you to be physically and mentally fit to function in that role. The trick is, the actual interview will only concern itself with the applicant candidacy and the job should be offered “subject to medical”.
Marital Status & Relationships: Are you in a relationship?
As with gender and sexuality, one’s marital status generally has no bearing at all on their suitability for a job. And yet 51% of interviewers we surveyed admitted to asking candidates whether they’re married / in a relationship!
Many use this as an indirect way to bring up maternity or pregnancy plans. On balance, some recruiters may assume that a recently married couple or a couple who have been together for a prolonged period of time would consider starting a family soon.
Religion: Will you need time off for religious holidays?
Another very obvious protected characteristic is what faith people chose to follow. Again, this should not really be in the conversation during a recruitment process.
The survey showed 18% of hiring managers understand that it’s illegal to ask questions like ‘Will you need time off for religious holidays?’ 39% said it was inappropriate, but not illegal, while 43% felt that this question was acceptable. For the avoidance of doubt, such a question could easily be considered illegal.
Unless that 43 % had a legitimate reason for those questions, it’s very likely that sort of question, in itself could amount to discrimination. It would be pretty reasonable for Judaism to be a prerequisite for appointing a new Rabbi or a Roman Catholic Head Teacher for a Convent.
It can be tricky at times to know whether certain questions are leading and what appears to be harmless can be taken completely the wrong way by someone, who is effectively a stranger. Asking “So, how long have you been married?” can be taken in a variety of ways. The best thing to do is to stick to business and potentially avoid sensitive and personal information if it’s not relevant to the vacancy.
The worst-case scenario could lead to a claim were the Claimant can seek an extra layer of damages called “injury to feelings” which look a little something like this:
If you have any concerns or queries regarding this article and the recruitment process within your business, please don’t hesitate to get in contact with the HPC Team today.
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