In the second article of Laytons’ series ‘Getting Recruitment Right’, we address the employment law surrounding the need to identify the job that is going to be filled and the suitable job description associated with the job.
Identifying the job within the wider context of the organisation gives candidates a greater understanding of the role and helps create goals for employees upon hire, job performance evaluation and training and development plans.
A job description will inform candidates about the position and the company, providing them with information that may encourage them to apply. Getting this right will not only ensure interested candidates understand what the job entails and determining if they are suitable for the position before they apply, it will also help streamline the selection process by receiving applications from candidates who closely match the organisation's needs.
So before advertising a vacancy, an employer should draw up a job description and person specification.
The basic contents of the job description should cover:
the main purpose and objectives of the job;
the job holder's position in the organisation; and
the main tasks and responsibilities associated with the job.
A job description is also an opportunity to show candidates why they might want to work for an organisation and should include a positive description of the company and culture.
The person specification should detail the experience, knowledge, qualifications, skills, abilities and behavioural attributes needed to perform the job effectively. Some of the requirements can be essential for the job and some can be beneficial to the role.
Ensuring that all requirements can be objectively justified by reference to the job in question will avoid indirectly discriminating against people with of a protected characteristic (age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, and sex). It is advisable to consider whether requirements such as specific qualifications, minimum number of years' experience, travel, or working specific hours, between certain times or at a particular location are necessary for the job in question.
When preparing a job specification, it is helpful to consider the provisions in the EHRC Code. The EHCR Code enables an employer to focus on the objective requirements of a job and avoids being influenced by any discriminatory considerations. This in turn avoids potential claims of unlawfully discrimination.
Some useful examples of how the EHRC Code advises on avoiding discrimination are:
Using an appropriate job title that does not show a predetermined bias for the recruitment of those with a particular characteristic. For example, describing the job as "shop girl" or "office boy" suggests an intention to recruit a younger man).
Describing the specific duties and responsibilities of the job which enable the applicant to decide if they would be a suitable candidate. For example, not to include tasks or duties that, in practice, are not performed. This may put off appropriately qualified people from applying and result in a discrimination claim if potential candidates believe they have unfairly been denied the opportunity to apply.
Focusing on the outcomes that need to be achieved rather than specifying how the task should be performed.
Stating whether the role can be undertaken part-time, full-time, or through job share arrangements or other flexible working arrangements. This avoids discrimination and widens the pool of potential applicants.
Applying a broader approach to required criteria by refereeing to ‘equivalent qualifications’ or to ‘equivalent levels of skill or knowledge’ will avoid indirect discrimination against applicants sharing a particular protected characteristic if this group is less likely to have obtained the qualification.
Avoiding criteria relating to health, physical fitness (and appearance) or disability as this may amount to indirect discrimination against disabled people in particular, unless these criteria can be objectively justified by reference to a requirement of the actual job in question.
While discrimination in employment is generally prohibited, in certain circumstances an employer may have a defence to an act of discrimination that is otherwise unlawful. The Equalities Act 2010 provides a number of exceptions which include ‘occupational requirements’, ‘positive action’ and ‘statutory provisions’. There are also a number of exceptions set out in the Act that are stated to specifically apply in relation to a particular protected characteristic.
Occupational requirement exceptions that employers might rely on when facing discrimination claims can include:
General occupational requirement: where having regard to the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation or age or being pregnant (or not being transsexual, married or a civil partner) is an occupational requirement.
Organised religion: This applies where the employment is for the purposes of an organised religion, and which needs to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
Employers with an ethos based on religion or belief: In certain circumstances an employer can show that being of a particular religion or belief is an occupational requirement.
Armed forces: This enables an employer to require a job to be done by a man, or by someone who is not transsexual, if this is a proportionate means of ensuring the combat effectiveness of the armed forces.
Employment services. This enables an employment service provider (such as a job centre or employment agency or business) to treat a person with a protected characteristic less favourably if the treatment relates to work that could be refused to that person because of an occupational requirement.
An employer is only entitled to apply an occupational requirement where doing so is a proportionate means of achieving a legitimate aim.
A positive action would enable or encourage those with the protected characteristic to overcome or minimise a disadvantage, meet their particular needs or encourage greater participation, without opening themselves up to discrimination claims brought by people who do not hold the relevant protected characteristic.
Other statutory provisions requiring or permitting discrimination include:
General authority: the statutory provision relied on by the employer must do more than merely permit the discrimination but must be necessary for the employer to have discriminated in order to avoid breaching the provision. For example, an employer can lawfully refuse to employ someone to drive a large goods vehicle who is not old enough to hold a LGV licence.
The protection of women: an employer can treat women differently if complying with legislation designed to protect women in relation to pregnancy and maternity, and any other circumstances giving rise to risks specifically affecting women. For example it may be lawful for an employer to not recruit a woman where the job involves handling chemicals that could harm women of child-bearing age.
Educational appointments: An employer may rely on exceptions in respect of sex and religion or belief discrimination that apply to certain schools and further and higher education institutions.
Crown employment and nationality: allows restrictions on the employment of foreign nationals in the civil, diplomatic, armed or security and intelligence services and by certain public bodies. Or where the difference in treatment is required by law, Ministerial arrangements or Ministerial conditions.
These issues can be complex and we always recommend clients to take early specialist employment law advice when required.
This article is general in nature and should not be relied upon for specific legal advice.
