Whilst few organisations set out to deliberately discriminate against candidates, some recruitment tools can be discriminatory without organisations being aware of their effect.  This is known as ‘adverse impact’. Indirect discrimination has long been prohibited but the recent interest in the finding that the GP clinical examination resulted in ethnic minority groups being four times more likely to fail than white doctors, has made adverse impact a topic that employers would be foolish to ignore.

There have been few published cases in the UK about discrimination against job applicants. The scarcity of litigation in this area is because job applicants litigate less than actual employees and that, until recently, the adverse impact of some recruitment tools was largely unacknowledged.

However, research has proved that online tests such as personality, verbal and numeric reasoning, and situational judgment tests can cause adverse impact.  The adverse impact of cognitive tests on black candidates was acknowledged in litigation in the USA over 30 years ago, but seems to have gone largely unnoticed in Britain until now. Traditional recruitment methods such as interviews and assessment centres can also cause adverse impact. It is therefore vital for all recruitment practices to be properly designed and validated to ensure they are fair.

Discrimination against job applicants can be costly to prospective employers in terms of settlement sums, litigation costs, tribunal awards and adverse publicity.  Additionally, employers may miss the best candidates for the job by discounting them on the basis of a disadvantageous selection tool.

What protection do job applicants have?

Job applicants are covered by the Equality Act 2010.  The prohibition on indirect discrimination means that an employer must not have selection criteria (including assessment centres, online tests or telephone interviews) that may apply to all candidates but which have the effect of disadvantaging job applicants of a protected characteristic - unless the employer can show that they are justified.

There will be no indirect discrimination if the employer's actions are objectively justified. To establish justification an employer will need to show that there is a real business need to use that selection tool and that the practice of using the selection tool was reasonably necessary in order to achieve that aim.

It is no defence that the employer did not consider the discriminatory effect of the assessment tool; indirect discrimination is unlawful whether it is intentional or not.

How to avoid adverse impact

An effective and fair recruitment process requires an objective, systematic and planned approach. Employers should use standardised assessment tools and scoring criteria that have been properly designed and thoroughly validated to ensure they are not selecting or discounting anyone for any reason other than their ability to do the job.

To avoid adverse impact employers should:

  • Evaluate pass rates across different protected groups to monitor whether any adverse impact has occurred;
  • Design and evaluate online tests to ensure that any adverse impact is reduced and that they predict performance in the job;
  • Use standardised questions and scoring in interviews for all of the candidates applying for the same role;
  • Use evidence-based techniques to design and evaluate the use of assessment centres;
  • Train assessors to focus only on candidate behaviour relating to the competencies they are meant to be measuring;
  • Continually monitor assessors’ scoring to understand whether conscious or unconscious bias is being introduced into assessment decisions;
  • Provide skills training to assessors on a regular basis to ensure that they continue to assess fairly and objectively.

Summary

Irrespective of legal and PR risks businesses should consider what they can do to ensure that they get the best candidates for the job. This would logically involve removing adverse impact so far as possible.

This article was written by Peter Burnham (Director, Burnham Business Psychology) and Sophie White (Senior Associate, CMS Cameron McKenna LLP). It was originally published by People Management Magazine Online on Thursday 28th November 2013.