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This week saw the BBC carried a story regarding the experiences of job interviewees.  It was reported that comments were made to a woman applicant, who was 37 years old, regarding her age and whether or not she was “too old” for the role.

Jillian MerchantOn the back of this the BBC put a call out, via LinkedIn, for people to get in touch regarding unexpected interview experiences. In response more than 1500 people got in touch with a range of questions which were deemed “inappropriate” and “outrageous”.

Some were asked about their sexuality, their relationship status or their religion.

Unfortunately, it is women of child bearing age who are bear the brunt of inappropriate questions at interview particularly in relation to their plans to have a family and how they plan to manage child care responsibilities.

So, what does the law say:

The Equality Act 2010 protects those with “protected characteristics”. The Equality Act defines these as:

  1. Age;
  2. disability;
  3. gender reassignment;
  4. marriage and civil partnership;
  5. pregnancy and maternity;
  6. race;
  7. religion or belief;
  8. sex and
  9. sexual orientation.

The Equality Act makes it illegal for an employer to discriminate against an applicant when making the decision of whom to offer employment, the terms of that employment or by not offering employment. 

The problem with this aspect of the law is that it is very difficult to prove that you have been not given a job because of a protected characteristic. It is always open to the employer to provide legitimate reasons for choosing another candidate and show that discrimination was not the reason. However, the interview questions set out above make it possible that a case could be argued that someone was not given a job because of their protected characteristics. This could be inferred from the questioning at interview. However, it would still be a fair from straightforward case.

The Equality Act provides further protection regarding recruitment, in that during the application stage the employer cannot ask about the health of an applicant before offering them a role. This is to protect employees who have health conditions from being discriminated against at application stage.

There are a variety of exceptions to this rule, including: whether an assessment has to be undergone or whether a reasonable adjustment has to be made to allow this to happen; if the question is necessary to establish whether the employee will have the ability to carry out a function that is intrinsic to the role or for monitoring diversity in the range of persons applying to the employer for work.

This is a particularly helpful provision. Quite often, once an employer has made an offer to someone they are more likely to be amenable to making suitable readjustments to follow through on their offer. The requirement for reasonable adjustments is rarely an unsurmountable hurdle; it often requires small and simple changes which just require an ability to think out the box.  If someone has been offered a job it makes it very difficult for the offer to be withdrawn if the reasonable adjustments are something straightforward such as: a particular software programme on a computer, amendments to duties, increased assistance and support. If an offer was withdrawn it is more likely that a case for discrimination could be made out.

The provisions of the Equality Act do place clear obligations on employers about what they can and cannot do when recruiting employees. As this becomes much more embedded in the culture of recruiters it is hoped that discrimination becomes more limited and the examples provided to the BBC become less.

Blog by Jillian Merchant, employment lawyer

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