Applying performance standards fairly

How can employers filter job candidates effectively without falling foul of discrimination laws? Phil Pepper reports

When used carefully, performance standards can prove a useful decision-making tool, helping employers to filter candidates and identify the most suitable individuals for a position. However, when applying specific criteria and conditions to job applications, it can be easy to fall foul of unlawful discrimination. So how can businesses improve their chances of finding the right person, while maintaining a fair recruitment process?

The Equality Act 2010 requires employers to avoid discrimination in the workplace, which includes their recruitment activities, from posting a job advert through to making a final offer of employment. The Act protects individuals who have one or more protected characteristics, such as age, sex, race, religion, disability, sexual orientation and pregnancy/maternity.

In general, employers have much discretion when it comes to recruitment decisions, including whether to introduce methods for assessing performance. However, without taking steps to ensure such processes are prejudice-free, businesses could find themselves having to justify their decisions before an employment tribunal. They must, therefore, put themselves in candidates’ shoes and remain aware of any potential bias that can occur, sometimes unconsciously.

A common pitfall for businesses when applying performance standards is a failure to distinguish between essential job requirements, and personal or commercial preferences, which can result in conscious or unconscious bias. For example, in some roles, a formal qualification is required, so listing this as a vital condition on an application form would not usually count as discrimination. 

In contrast, an application condition that states that a job applicant must be ‘physically fit’, or of a certain age, could amount to unlawful discrimination of those criteria, which cannot be justified for that particular role. In all likelihood, the fact that an individual may not be physically fit or may be slightly older/younger than the employer would like, would not mean they are not capable of performing the advertised role.

Inconsistency is another common stumbling point for businesses that require candidates to meet particular performance criteria. Take, for example, a female candidate who is singled out to complete a tougher assessment test, which is not required for male applicants. If her application is subsequently rejected, she may bring a claim against the employer on the basis of sex discrimination. The employer would then be required to explain why different criteria were applied to her than were applied to the male applicants. 

A formalised process, which is applied consistently, is the best way to give conscious or unconscious bias a wide berth when applying performance standards. Strained workplace resources are a key reason behind the rise of the automated application form in recent years. However, they also provide an effective method of maintaining a fair and consistent recruitment process, requiring all job applicants to follow a set procedure and answer common questions.

Putting safeguards in place can also help businesses guard against potential discrimination by preventing bias from influencing key job criteria or conditions. This could involve requiring application forms to be assessed by multiple members of staff, ensuring the decision to progress or reject an application is not in the hands of a single individual. Alternatively, if the initial sift of applicants is undertaken by one individual, employers should consider building a checking system into the process.

Even with careful steps to eradicate prejudice from their recruitment processes, employers may sometimes find themselves facing a discrimination claim. It’s essential they have detailed evidence to back up their hiring decisions. Keeping records (written or otherwise) at every stage of the decision-making process, and storing them in accordance with the employer’s privacy notices, will help businesses evidence their decision-making process in an attempt to convince tribunals that applications were rejected for a legitimate reason. 

Providing those involved in the recruitment of staff at all levels with sufficient and up-to-date training on equal opportunities and diversity can also play a key role in helping to eradicate potential discrimination issues. Making employees aware of the possible consequences of unlawful discrimination (such as personal liability) is also important. They should be informed that there is no guarantee of complete confidentiality, given that emails and other documents can be obtained by applicants through SAR requests and disclosure in tribunal proceedings. They should avoid inappropriate comments made in the belief that applicants will never see them.

Ultimately, a continual and conscious awareness of the basic principles of unlawful discrimination under the Equality Act, and the likely consequences of any discrimination in all areas of recruitment, is key to keeping the job application process fair. By adopting this approach when using performance standards, employers stand the greatest chance of finding the best person for their role, while avoiding unwanted discrimination claims. 

Phil Pepper is head of employment at Shakespeare Martineau