Against what sort of criteria should job applications be compared?
The criteria against which each application can be compared will include qualifications, training, length and type of work experience, level of responsibility and authority held, level of knowledge and skills, and special skills or aptitudes specific to the job.
How can an employer ensure that line managers draw up a shortlist for a position without unlawfully discriminating against applicants?
By comparing each application with the employee specification to establish whether, on paper, the person has the type of background that is necessary or desirable for the job, the manager will minimise the risk of bias on grounds of gender, race or age (or any other irrelevant factor). Personal information such as the applicant's name, sex, marital or civil partnership status, sexual orientation, nationality, country of birth, religion and age should not form part of the process.
How can an employer ensure that line managers draw up a shortlist for a position without unlawfully discriminating against applicants?
By comparing each application with the employee specification to establish whether, on paper, the person has the type of background that is necessary or desirable for the job, the manager will minimise the risk of bias on grounds of gender, race or age (or any other irrelevant factor). Personal information such as the applicant's name, sex, marital or civil partnership status, sexual orientation, nationality, country of birth, religion and age should not form part of the process.
Is it permissible to exclude from a shortlist any job applicants who submit untidy or badly written applications?
Although it is permissible to exclude applicants on the basis of the presentation of their application form or CV, presentation is often irrelevant except in the case of a professional job or one in which the skills of written communication are expressly required for effective performance. If the job is a manual one that does not require any written communication skills, rejection on the grounds of a poorly presented application form would be inappropriate. Furthermore, if the job applicant has a disability, for example dyslexia or learning difficulties, judging him or her on ability to present the written word could be discriminatory and unlawful.
Is it unlawful to exclude a job applicant from the shortlist on the grounds that his or her disability would cause practical difficulties for the employer?
Is it unlawful to exclude a job applicant from the shortlist on the grounds that his or her disability would cause practical difficulties for the employer?
A candidate who has disclosed to the employer that he or she has a disability should be shortlisted for interview unless he or she is clearly unsuitable for an unrelated reason (for example if he or she lacks the necessary experience for the job) or if it is clear from the information provided that the disability would prevent effective or safe performance of the job. Section 20 of the Equality Act 2010 imposes a duty on employers to make reasonable adjustments to any provision, criterion or practice that they apply and to any physical feature of their premises to prevent or reduce any substantial disadvantage that a disabled employee or job applicant would otherwise have.
If a job applicant has suffered from a debilitating illness in the past, can he or she be excluded from the shortlist?
No, not for that reason alone. Where someone has had an illness in the past that at the time would have amounted to a disability under the Equality Act 2010 (or the Disability Discrimination Act 1995, which has been repealed by the Equality Act), it will be discriminatory to reject the person for employment for this reason (s.6(4) of the Equality Act 2010). A history of cancer or depressive illness would be good examples.
Can an employer use an automated process in making shortlisting decisions?
Section 12 of the Data Protection Act 1998 provides that the use of automated processing as the sole means of making recruitment decisions is restricted if the decision-making evaluates matters such as the job applicant's work performance, conduct or reliability. If an employer uses an automated method as the sole basis for shortlisting, it must notify the applicant as soon as reasonably practical that the decision was taken on this basis. The applicant then has 21 days to ask the employer to reconsider any adverse decision made about him or her. Any such representations from the applicant should be taken into account before the final decision is made.
At what stage of the recruitment process should employers make the decision to take positive action?
According to government guidance (Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion (PDF format, 338.43K) (on the Government Equalities Office website)), positive action can be taken at any stage of the recruitment or promotion process. The guide gives the example of the positive action provisions being used to complete a shortlist of candidates to go through to the next stage of assessment. However, the guide goes on to say that it is expected that positive action will mainly be used as a tie-breaker between candidates of equal merit for a particular post at the end of the recruitment process, ie at the decision stage. By then, the employer concerned should have been able to establish all of the relevant factors to enable it to determine, as definitively as possible, whether or not the final candidates are truly as qualified as each other.
