We have recently seen a trend in organisations thinking laterally about their recruitment campaigns and being more open to diverse candidates. For example, Microsoft has been recognised for opening an interview academy offering mentoring specifically designed to facilitate those with autism being successfully hired.
This begs the question of how far employers can go to take action to recruit or promote such candidates.
Can we positively discriminate?
If an employer believes that those who share a protected characteristic (age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, or pregnancy and maternity) are disproportionality under-represented, action can be taken to address that without the risk of discrimination claims being brought by those who do not share the protected characteristic. This is known as positive action.
For example, employers could have an initiative which supports unemployed mothers who want to return to work after taking care of their children. However positive action does not permit employers to recruit this candidate if someone who does not share the protected characteristic is more qualified.
Otherwise, treating one person more favourably than another because they have a protected characteristic is generally prohibited except where the individual is disabled. This means an employer is entitled to restrict recruitment, training and promotion to disabled people only as it is recognised that it is considerably harder for those with a disability to find suitable employment.
As an example of this, Microsoft recognised that individuals with autism were more likely to showcase themselves better in a workplace environment rather than in a short face-to-face, one-on-one interview.
Is it disability discrimination?
If the candidate is considered to have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, they will be protected and considered disabled in accordance with the Equality Act.
If the candidate has a disability then the employer and other employees should not treat the candidate:
- less favourably because of their disability;
- unfavourably because of something arising in consequence of their disability; or
- have a policy which puts the candidate with a disability at a disadvantage.
An employer also has a duty to make reasonable adjustments to avoid a disabled person being disadvantaged.
Employers should also avoid asking too many questions in regards to the candidate’s condition during the interview process. There is a risk that an unsuccessful candidate might argue that they were not offered a job because of their disability.
Equally if an employer decides to focus a recruitment drive on a particular type of candidate they must be careful not to stereotype as doing so could be discriminatory. Employers should not assume that all those with a particular condition or learning difficulty have the same traits. While it is important for an employer to encourage a variety of applicants to promote equality, diversity and inclusion, employers should be careful to not pre-determine or stereotype a candidate.
What about the ‘wild cards’?
Adopting a culture that embraces diversity and values people from different backgrounds is vital for the sustainability of a business. The ‘wild cards’ can offer a new outlook and bring different skills to the business that can give it that competitive edge.
The challenge for employers is striking a balance between accommodating these differences without making special allowances which makes existing staff feel left out.
Internal policies such as dress codes, flexible working requests and conduct issues should be managed consistently and exceptions should only be made where necessary to support someone who would otherwise be treated less favourably.
Dan Evans is a solicitor in the employment team at Royds Withy King