Such practice has also recently hit the headlines in the charity press with one case reportedly being referred to the Scottish Police.
The Equality Act 2010 makes it unlawful to discriminate against people on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. To avoid discriminating against anyone during recruitment and selection, we must consider making reasonable adjustments. For example, a disabled person may require assistance with accessing the interview location, additional time to complete a selection test or a chance to apply using documentation alternative to your standard application form.
We have most recently been involved in a number of extreme cases, seemingly involving submissions from the same candidate. The applications received contained upwards of 10 pages of general statements, pre-solicited references and a list of very high level qualifications that the candidate purports to have gained in their career. Such documents were often accompanied by an aggressively worded email setting out various requirements that are suggested as ‘reasonable’ adjustments that the employer is ‘required’ to make under their duty set out within the Equality Act 2010, to support the candidate to attend an interview. Such adjustments were listed to be: a paid carer to support the candidate to attend an interview, hotel accommodation with meals prior to the interview, paid first class rail travel, a relaxation room to prepare for and rest after interview, and refreshments and snacks. In some cases, this candidate also threatened court action if business class air travel was not paid for to support their attendance.
Crucially, these particular applications also stated that any attempts to contact the candidate via telephone would cause them anxiety and stress due to a mental health condition and as a result they would be unable to take part in a telephone interview or answer any questions before hand to further verify their suitability for the role.
In reality, the cases we have been involved in are exceptional with some very clear threats and some specific outlandish requests, and in reading all of this you may question why it would ever be taken seriously? However, as stated above, the Equality Act does indeed require us to consider such adjustments and it does happen more often than you would expect. So, what lessons can we learn from such cases, how can we determine a genuine request for support from a fishing exercise and what can we do to limit our exposure to such applications?
Firstly, it is useful to remember that a European Court of Justice (ECJ) ruling from a similar case provides that a person who applies for a position in order to claim discrimination cannot be considered as a “victim” under the EU law, and their actions may, in fact, constitute “an abuse” of rights. As such a candidate would have to prove a genuine interest in the position to be successful in an employment tribunal claim. If you have a candidate blindly applying for multiple roles, who live an enormous distance from the working location of the role advertised, and does not display any skills or qualifications that are appropriate for the role then it may be that they are simply fishing.
This is not always the case of course and genuine candidates can be minded to move house for the job of their dreams. Therefore, secondly we must ensure that we regularly review our recruitment practices to ensure a fair and objective approach, ensure that we are supporting a diverse range of candidates to work with us and to minimise our risk of discrimination claims:
- Provide staff who are involved in recruitment with training including equality and diversity considerations.
- Give careful thought to the content of job adverts and whether or not the job selection criteria are supported by legitimate business reasons.
- Have a clear approach outlined within your application pack that candidates are required to address the person specification for the role. Where candidates request an adjustment to this, make it clear that they should submit what they can to demonstrate their suitability for the role and that you will put their submission forward for shortlisting. Any applications that you receive should then be simply placed into the pile for shortlisting and compared one by one against the criteria.
- Mitigate against unconscious biases and making assumptions when sifting through the applications. Focus on which application best matches the job and person specifications. If possible, two or more people should be involved in shortlisting.
- Be open to making reasonable adjustments in relation to candidates that have declared a disability and asked for support to take part in the process, but use your judgement. Where such requests appear extreme, seem unreasonable or if a candidate is asking for money to make arrangements for themselves, consider seeking advice before going ahead or refusing them outright unless you are comfortable to do so.
- If a candidate’s first communication with you is to threaten you with legal action, or pressure you to shortlist them, then this is likely to trigger your alarm bells, especially if the candidate has not addressed the requirements of the role in their application. Ensure that you calmly follow your usual procedures, do not be drawn into a debate about your legal obligations and place the candidate’s information through to the shortlisting process along with all other applications.Apply fair and objective criteria to that process for all candidates.
- Consider how you communicate with candidates both before and after shortlisting and interviews. Support your managers to have a structure for candidate contact and feedback so that they are not putting themselves at risk of a malicious or unfounded claim.
- Keep cogent records of all recruitment decisions.
Investing time and effort into robust recruitment and selection practices will seek to ensure that you hire individuals with the skill, ability and competence to perform in the role but will also ensure you don’t get caught out!