Incident highlights difficulties of encouraging diversity while avoiding discrimination accusations
Employers are increasingly judged on their diversity data and called on to demonstrate inclusivity in many contexts. The BBC was recently accused of discrimination in the media when it specified that its preferred candidate to present the One Show would be male, over 30, from an ‘ethnically diverse background’ and have a northern accent.
While the objective of getting new and different faces onto our TV screens is laudable, such an approach may be problematic from an equality perspective.
Generally, under the Equality Act 2010, an employer must not discriminate when advertising jobs or through the actual content of the job advertisement. A job applicant can bring a claim for discrimination against an employer if any aspect of the recruitment process is perceived to be discriminatory.
Ideally, the advert should focus on the actual requirements of the job rather than the characteristics of the applicant. The ‘person specification’ should describe the skills, knowledge, and experience required to perform all prescribed duties satisfactorily. Advertisements should be carefully worded to be gender and age neutral, and to avoid any inference that the employer may discriminate directly or indirectly in any way.
There are, of course, other ways of encouraging the widest possible breadth of applications without profiling the gender or ethnicity of the desired candidate.
Advertisements should generally state that applications from ethnic minority candidates and other diverse groups are encouraged. Employers should also consider carefully where recruitment material is placed. For example, an employer might target publications with especially broad gender or ethnic coverage or hold recruitment events in particular regions. Specialist recruitment agencies are increasingly springing up to help applicants from diverse backgrounds access traditionally exclusive sectors such as the media and the law.
Adopting a standardised recruitment process is fundamental to avoiding discrimination, as is making an objective assessment of a candidate’s ability to perform the role. It is also important to maintain a comprehensive paper trail to demonstrate that applicants have been assessed impartially. Initiatives such as ‘name blind’ recruitment can be helpful in ensuring that non-typical candidates do not fall prey to (conscious or unconscious) bias early on in the recruitment process.
As well as protecting against less favourable treatment, the Act permits lawful positive action where a group with a particular protected characteristic is disproportionately under-represented in a workforce. In some circumstances, employers can treat someone with a protected characteristic (age, disability, race and so on) more favourably than others in recruitment or promotion, provided that person is ‘as qualified’ as the other candidates. However, these provisions have proved controversial and have not been as widely used as anticipated. Arguably for them to kick in, all other factors must be equal and it is rare for two candidates to be so evenly matched.
The legislation recognises that there may occasionally be a genuine occupational requirement for a candidate of a particular gender or ethnic grouping (for example, a female fitting room attendant in a clothing store) but these exceptions are rare. Whatever the underlying motivation, it is certainly a high-risk strategy to state a preference at the outset for candidates of, for example, a specific ethnic background, age or gender. A safer and less divisive approach to promoting inclusion might be to invite applications from the broadest possible pool before applying positive discrimination provisions at the shortlisting stage to ensure a diverse group of candidates are available for selection.
The Equality Act provisions covering recruitment apply specifically to employment offers. Employers may have a little more flexibility outside of this (for example, offering a training course to a group with a protected characteristic that is under-represented in the workforce). The BBC has stressed that it was not recruiting to a specific post but simply trying to encourage contributions from a more diverse pool of freelance journalists. However, it is important employers tread with care. Some advertised posts (for example internships) are not easily categorised and recruiters may inadvertently fall foul of employment equality provisions by offering such opportunities exclusively to a particular group.
Maintaining a completely even-handed approach, while simultaneously addressing a diversity imbalance, is not easy. While an unrepresentative workforce is undoubtedly bad for business, the recent headlines demonstrate that overtly favouring a particular group can also carry reputational risk. Employers must decide how far they are willing to push the boundaries in the interests of inclusivity.
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