Line manager briefing: Interviewing
Overview
This
briefing covers the topic of recruitment interviewing and includes information
on:
1. Employers' potential liability for discrimination in recruitment
2. The law
3. Good practice in recruitment interviewing
- avoiding
bias
4. Effective questioning techniques
- avoiding
discriminatory questions
- interviewing
a disabled candidate
5. Interview notes
6. Further general guidelines
7. Test yourself
1. Employers' potential liability for discrimination in recruitment
Various anti-discrimination laws apply throughout the entire process of recruitment, including selection interviewing.
Employers are liable in law for any discriminatory actions perpetrated by their staff in the course of their employment. This means that if a manager who is conducting recruitment interviews does or says anything that could be construed as discriminatory, the employer will be potentially liable to pay compensation to the victim if a successful complaint is subsequently made to an employment tribunal.
A job applicant who believes that he or she has experienced discriminatory treatment during the process of recruitment has three calendar months from the date of the discriminatory treatment to lodge a claim with a tribunal.
There is no limit on the amount of compensation that can be awarded by tribunals in discrimination claims.
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Did you know that … |
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Source: Equal Opportunities Review, No.144 |
2. The law
Job applicants enjoy protection against discrimination on the grounds of:
sex;
transgender status (ie where a job applicant has had a sex change or is in the process of changing sex);
pregnancy;
being married;
colour, race, nationality, ethnic origins and national origins;
religion or belief;
sexual orientation;
disability.
Rejection for employment is also unlawful if it is on the grounds of a candidate's past or present trade union membership or, with some exceptions, on the basis of a 'spent' criminal conviction.
The general principle contained in the UK's anti-discrimination laws is that all job applicants must be treated equally, irrespective of sex, race, etc. The structure of the law on disability is slightly different in that the employer may choose, if it wishes, to treat a disabled candidate more favourably than other candidates. Such preferential treatment is not permitted under the other anti-discrimination laws.
Discrimination can be direct, ie targeted at an individual, or indirect.
Indirect discrimination occurs where the employer unjustifiably imposes a criterion as part of the recruitment process, which, although applied to all job applicants, has or could have a disproportionate adverse effect on certain people. An example could be a requirement for job applicants to speak or write English to a standard of fluency. This criterion would discriminate indirectly against people who come from a country in which English is not the first language. Such a requirement would be racially discriminatory and unlawful unless the employer could show that it was appropriate and necessary for the effective performance of the job, and not excessive in relation to the needs of the job.
It is irrelevant whether or not discriminatory treatment is intentional.
3. Good practice in recruitment interviewing
The key purpose of a recruitment interview is to assess the skills, experience and general background of job applicants in order to make a decision on which candidate is the most suitable person for a particular job. Questions should therefore be structured to explore facts, and interviewers should take care not to make decisions based on assumptions about applicants linked to their own subjective views and opinions.
It is a good idea for managers to prepare a list of core interview questions to be asked of all applicants for a particular post. This approach ensures consistency and fairness because all interviewees will be given an equal opportunity to sell their skills and abilities. Managers should not, however, restrict themselves to asking only these questions, as there will also be a need to ask questions that are specific to a particular applicant, for example to clarify something vague or ambiguous on an application form or ask about a gap between jobs. In addition, at the interview itself, further unplanned questions will be necessary in order to follow up or probe any relevant matter raised or hinted at by the interviewee.
Following the guidelines below will help those involved in recruitment interviewing to avoid discrimination.
Avoiding bias
Managers involved in recruitment have a duty to conduct selection interviews fairly and without bias for or against any particular candidate. This is harder than most people think, because all human beings are affected by bias and prejudice, and these often operate at a subconscious level. It is therefore important for managers responsible for recruitment decisions to recognise how bias might influence their thinking.
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Dos and don'ts |
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Do recognise that candidates from different racial backgrounds may
have different ways of communicating their achievements at a job interview.
For example, candidates from certain ethnic backgrounds may, on account of
their racial or cultural background, be relatively reserved as regards their
experience and achievements. Another point to be aware of is that in some
cultures it is considered impolite to make direct eye contact with a person
in authority. Do guard against the 'halo effect'. This occurs when something about
a job applicant creates a favourable first impression on the interviewer with
the result that he or she may not be able to view the candidate's suitability
for the job objectively or recognise any negative elements in his or her
background. The interviewer might, for example, find the applicant's manner,
accent or appearance pleasing, or might discover that he or she attended the
same school or university as the applicant. Do recognise your own general personal attitudes, views and
likes/dislikes with regard to people, and learn to put these to one side
during selection interviews. |
4. Effective questioning techniques
Design questions to check facts, obtain relevant information about each applicant's background, test achievement and assess aptitude and potential.
Ask specific questions on matters such as the applicant's work experience, qualifications, skills, abilities, ambitions and strengths/weaknesses.
Ask open questions, ie those beginning with 'what', 'which', 'why', 'how', 'where', 'when' and 'who', rather than closed questions inviting only a 'yes' or 'no' answer.
Ask questions that are challenging, but never ask them in an intimidatory or aggressive tone or manner.
Ask questions that require the applicant to give examples of real situations that he or she has experienced, for example: 'Tell me about a time when you had to discipline a member of your staff. How did you handle it?'
Ask factual questions about past experience and behaviour and refrain from making assumptions.
Avoiding discriminatory questions
Discrimination can take place in the following circumstances.
A job applicant is subjected to interview questions that have an underlying discriminatory impact, for example questions put to a woman about her children or childcare arrangements.
A question put to a job applicant implies that the interviewer thinks there may be a problem. An example could be where a question such as 'would you have a problem working on Saturdays?' is asked specifically because the interviewer has deduced (or assumed) that the candidate is Jewish. Such a question could be viewed as directly discriminatory on grounds of religion.
Negative assumptions are made about the applicant on the basis of the answers given to the above types of questions.
An applicant who is pregnant is asked questions about plans for maternity leave, childcare, etc.
Candidates should not be asked questions about:
their marital status or marriage plans;
childcare arrangements;
general family commitments and/or domestic arrangements;
actual or potential pregnancy/maternity leave;
their partner's occupation and mobility;
any actual or potential absences from work for family reasons.
Employment tribunals have consistently taken the view that such questions, if asked of a female candidate, indicate an intention to discriminate (whether conscious or not). This is because questions of this type are usually rooted in an assumption that childcare and other family commitments may have a negative impact on a woman's commitment to the job, attendance or availability to work overtime.
Instead, questions that explore the applicant's ability to perform the job should be asked.
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Don't say |
Do say |
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Who would look after your children if you were asked to travel away from home on a business trip? |
The job would involve travelling away on business trips approximately [x] times a year. To what extent would you be able to comply with this? |
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If we needed you to work late at short notice, how would this affect your childcare arrangements? |
The job might occasionally require you to work late at short notice. How would you respond if asked to do this? |
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How would your husband feel if we asked
you to relocate to a different branch of the company? |
How would you feel if we asked you to relocate to a different branch of the company? |
Ultimately, if a job applicant who is suitable for the job in terms of skills and experience is rejected in favour of someone of the opposite sex or of a different racial group, for example, and that person can show that he or she was materially disadvantaged by the way in which the interview was conducted, he or she will have a strong argument that the selection decision was discriminatory.
Interviewing a disabled candidate
There is no duty on job applicants to volunteer to disclose a disability to a prospective employer. It follows that where a disabled applicant is being interviewed the onus will be on the manager conducting the interview to ask appropriate questions to ascertain whether the candidate is capable of performing the job effectively. It will also be necessary for the manager to establish whether any adjustments to working practices or premises would be necessary to support the disabled applicant should he or she be appointed. Such questions are permitted, but it will be important to ask them in a positive way, ie without adopting a negative attitude or making assumptions that there will be a problem.
Make sure that any questions asked focus on the applicant's ability to perform the job duties, and not on the potential difficulties that he or she might have in the job on account of the disability.
Ask questions related to the effects of the applicant's disability only where the answers are likely to be relevant to the duties of the job for which the person is being considered.
Refrain from asking intrusive questions about the candidate's medical condition or disability.
Frame questions in a positive way so as to avoid the risk of the job applicant perceiving that you are looking for or anticipating problems.
Avoid drawing negative conclusions about a disabled candidate's capabilities without solid evidence, as such assumptions would amount to disability discrimination.
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Don't say |
Do say |
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What exactly is the matter with you? |
Tell me something about how your condition might impact on your ability to… |
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You would obviously be unable to do the manual aspects of the job… |
Tell me the extent to which you think you would be able to perform the manual aspects of the job. |
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How do you think other employees might react to a disabled person in the workplace? |
This company has a policy of supporting disabled employees. |
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Did your disability cause problems in your last job? |
What adjustments did your last employer make that you found helpful? |
5. Interview notes
It is essential for managers conducting recruitment interviews to keep notes of the interview and afterwards to make a record of the rationale behind the selection decision, ie to note the key reasons or reason why the successful candidate was selected and the other shortlisted candidates rejected. There are several key reasons why such records are important.
Nobody has a perfect memory and if you have interviewed several candidates during the same day you will inevitably be unable to recall accurately who said what, what the key issues were in relation to a particular candidate, and how a particular question was answered.
If no records are created and one of the rejected candidates subsequently brings a tribunal claim alleging discrimination, you are unlikely to be able to recall the precise matters that were discussed at the interview or the way in which questions were phrased.
The absence of any records may lead an employment tribunal to conclude that the whole recruitment process was conducted in a random, subjective or haphazard way.
If records are available this will provide evidence that the recruitment process was approached in a professional manner. It may also provide specific information that will form a defence against the claim, for example a record that the answers that the candidate gave to specific questions indicated that he or she did not have the essential knowledge or skills required for the job.
Once a tribunal claimant has shown facts that indicate that he or she might have been treated less favourably on one of the prohibited grounds, the burden of proof shifts to the employer to prove, on the balance of probabilities, that it did not discriminate. In recruitment cases, this means persuading the tribunal that the candidate's recollection of events is false or inaccurate, that the questions asked were in fact phrased differently or that what was said was not discriminatory. In practice, this would be impossible to achieve without proper records.
Managers should be aware that any record created about an individual and placed in a structured file (or input to a computer) will give rise to individual rights under the Data Protection Act 1998. Specifically job applicants will have the right, upon written request, to be given a copy of their own file. Interview notes should therefore be compiled with this in mind.
6. Further general guidelines
Obtain information through open questioning on matters such as the applicant's work experience, qualifications, skills, abilities, knowledge, ambitions and strengths and weaknesses.
Do not use age as a criterion in the selection process. Age discrimination legislation is to be implemented in October 2006 and age is, in any event, a poor predictor of effective job performance.
Do not allow gut feeling alone to determine the selection decision, because gut feelings are inevitably influenced by personal attitudes, and may possibly result in unlawful discrimination.
Interviewers who focus on the requirements of the job and the extent to which each applicant's background matches these will increase their chances of avoiding unlawful discrimination and selecting the most suitable candidate for the job.
7. Test yourself
1. A line manager inadvertently asks a discriminatory question at a job interview. What are the possible consequences?
(a) There is no possibility of a tribunal claim. Only employees and not job applicants can bring claims of discrimination.
(b) There is no possibility of a tribunal claim. The line manager did not intend to discriminate.
(c) A tribunal claim is possible but the employer cannot be held responsible for the line manager's actions.
(d) A tribunal claim is possible and the
employer will be held responsible for the line manager's actions.
2. Which of the following would it be inappropriate for a line manager to ask?
(a) How would you respond if you were asked to work late at short notice?
(b) How would you feel about working in a predominantly Asian team?
(c) How would you feel if in the future we asked you to relocate to our northern office?
(d) What are your general goals over the next five years?
3. Which of the following questions would be inappropriate in relation to a disabled candidate?
(a) Has your current employer made any helpful adjustments to your job?
(b) What is wrong with you?
(c) How might your condition impact on your ability to use a computer?
(d) If we were to offer you the job what type of support to do it would you find helpful?
4. Which of the following interview questions is unlikely to elicit much useful information?
(a) Which of your previous positions did you enjoy most and why?
(b) What are the main challenges of your current role?
(c) Do you enjoy working in a customer-facing role?
(d) How do you think your previous experience could be of benefit in this role?
5. Which of the following statements regarding interview notes is true?
(a) An experienced line manager will be able to recall accurately how each candidate answered a particular question so making a written note of responses will be unnecessary.
(b) If there are no interview notes a tribunal will not be able to conclude that the interview was conducted in a discriminatory manner.
(b) As interview notes are for their own sight only, line managers should feel free to note their own assumptions about the candidates where appropriate.
(d) Where an unsuccessful job applicant brings a tribunal claim, accurate interview notes can assist in the defence of the claim.
The answers can be found at the bottom of the document.
The author: Lynda Macdonald has worked freelance as a trainer and consultant since 1987, specialising since 1995 in employment law. Prior to this she worked in HR management for over 10 years. Lynda has an LLM in employment law and practice and now concentrates on designing tailored training courses for managers on employment law related topics.
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About HR & Compliance Centre line manager briefings |
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HR & Compliance Centre line manager briefings are general summaries of current employment law and good practice specially written for line managers. They are designed to be used by HR & Compliance Centre subscribers who need to ensure that the line managers in their organisation deal with job applicants and manage workers in accordance with the law and good practice. They can be adapted for use in individual organisations and can be used either as a training resource or as an information resource, subject to the HR & Compliance Centre terms and conditions of use. |
Test yourself answers: 1. (d) 2. (b) 3. (b) 4. (c) 5. (d)
