Janvi Patel writes:
Discrimination legislation is the ball game here. Pre-starting employment discrimination is the main claim an employee can issue against a potential employer and to add to this, it can be the most expensive claim, as discrimination claims do not have monetary caps. So the discrimination heads you need to remember are; race, colour, nationality, ethnic or national origin, sex, disability, age, religion/belief, sexual orientation, gender re-assignment, marital or civil partner status and trade union membership. It is also unlawful to discriminate on the grounds of fixed-term or part-time status.
For a successful discrimination claim, the potential employees need to show that there was discrimination as a result of the arrangements made for recruitment, the terms of employment offered, the refusal or a deliberate failure to offer employment and/or harassment.
In the case in question, although you might be looking at “the refusal or deliberate failure to offer employment”, you should bear in mind that it is not all about your decision making process post interview, but also about your recruitment process throughout. Your actions and thoughts throughout will assist you or hinder any defence if a claim is issued. Essentially, if you have failed to show a full and fair recruitment practice, it will be harder to show that you have acted fairly and objectively - in a discrimination claim it is essential to be clear as an inference can tip you the wrong side of a claim.
Start at the beginning. Clearly set out the criteria for the job and make sure that you stay clear of words that could imply discrimination, such as “mature”, “young”, “energetic”, all of which could imply age discrimination. Make the criteria as objective as possible as this leaves less room for manoeuvre and therefore less room for argument. The next step is to make sure your advertisement reflects your criteria and again, take care of the words you use.
When screening CVs or better still application forms, use the criteria you set out at the beginning. If possible make notes about ‘why yes’ or ‘why not’, but again, be careful not to use words that could imply discrimination.
Consider where and how you hold the interviews; make sure that you have wheelchair access and that during the interview you have a clear set of questions based on your criteria. Make clear notes of the interview and try to base your views on the selection criteria you have set out.
If you have all of the above in place and you still cannot pin point why you like one candidate over the other, at least you will have shown that you have followed a full and detailed process. If you do not have all or most of the above documentation in place, don’t panic. You should try and document your thought process based on objective criteria bearing in mind that you might need to show that the “gut feeling” is not based on any of the discrimination heads.
Janvi Patel is a laywer