Brokers should ask themselves these seven questions when recruiting, as tribunal claims rise an estimated 64%

“Whilst going through this process, employers should take care and give genuine consideration to whether or not there really is a need for certain qualifications or certain experience, because both of those can be discriminatory on grounds of age,” Mark said.

Brokers need to ensure that all the requirements for the job can be “objectively justified”.

3)   Have you avoided discrimination and unconscious bias?

Discrimination can be both direct and indirect. When you treat someone differently to another person because of a protected characteristic, such as race, sex, or disability, that normally constitutes direct discrimination, according to Mark, and you can’t defend it if you face a claim of direct discrimination that’s proven against you.

In contrast, indirect discrimination is where an employer treats everybody exactly the same but because of an individual’s protected characteristic they are likely to be put at a greater disadvantage than someone without that characteristic. Mark gave the example of someone with a physical disability potentially not being able to satisfy a requirement to be physically fit for a job.

Mark advised considering whether any requirement for specific qualifications, minimum number of years experience, travel, working certain hours between certain times or at a particular location are really necessary for the performance of the job in question.

He also suggested considering whether the job needs to be undertaken on a full-time or part-time basis, and whether home, hybrid or flexible working or even a job share arrangement would be on offer.

If the job is to be advertised on a full-time basis then ensure that “there is some objective justification for that requirement”, he said.

4)   Is the information you’re requesting necessary, and have you complied with GDPR?

You should ensure that all documents are processed in accordance with the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018, and only ask for information that you’re permitted to ask.

For example, pre-employment health questionnaires are generally unlawful, according to Mark.

“It would be an act of disability discrimination to ask a job applicant questions about their health or any disability before making a job offer,” he said. “There are permitted exceptions, mainly around asking whether the applicant requires any reasonable adjustments for the interview or the recruitment process.”

Criminal records is another area to be careful about. It’s generally unlawful to ask about criminal records as part of the recruitment process unless there are specific legal requirements which can be met.

“Employers should avoid requesting criminal record information at the application stage, as this is unlikely to be necessary and could breach data protection laws,” Mark advised. “Instead, they should limit such inquiries to the job offer stage and only for the candidate selected for the role, ensuring that the processing is proportionate and relevant to the position.”

When processing criminal offence data, employers must ensure compliance with data protection laws and the Rehabilitation of Offenders Act.

Photo by Claudio Schwarz on Unsplash

5)   Is your recruitment selection criteria objective?

It’s best to shortlist for the interview, and, if possible, try to use blind CVs focusing on the objective elements of the role when shortlisting.

“At the shortlisting stage there’s no need to know names which could, for example, indicate race,” Mark said. “There’s no need to know age or sex. Instead, shortlist based on objective criteria.”

He advised having more than one person consider the applications to reduce the risk of one person taking an unbalanced or overly subjective decision about an applicant.

All shortlisted applicants should be asked the same questions by an interview panel and the panel should agree what criteria should be used to assess suitability and what weighting should be applied to each criteria.

“Plan in advance whether questions alone will be sufficient or whether other forms of assessment can be used,” Mark said.

Employers need to be mindful about neurodiversity.

“I’ve seen cases where a person’s personality or introverted nature might go against them, but that, in itself, could amount to discrimination so looking for team players, for example, or bubbly personalities can be risky because it may indirectly place some people at a significant disadvantage,” he said.

Pregnancy is another “risky area”, Mark said.

“It goes without saying, if a woman turns up for a job interview and she is obviously pregnant, that should have no bearing on whether or not she gets the job, even if it may result in her going on maternity leave shortly after starting,” he said.

6)   What type of contract are you offering?

A permanent contract is the most common type but a fixed term contract can sometimes be useful. For example, to deal with a particular task or to cover a period of leave, such as maternity leave.

“But do bear in mind that fixed-term workers also have their own specific protection under the fixed-term worker regulations, and you can be caught out if you’re not careful of that,” Mark said.

“Zero hours contracts are still used and can still be effective. They might also limit the rights of workers, but take care that they don’t morph into a permanent contract by misuse.”

However, there are proposals to abolish zero hour contracts under the Employment Rights bill, which was published in October 2024.

7)   What assessments will you make?

“Probation periods are still used, and they’re a good method of assessing ability early on,” Mark said.

“You can often include a shorter notice period during a probation period, which can then be extended under the contract whilst probation has been passed.”

In addition to the probation period, there is currently a two-year period before an employee can claim ‘ordinary unfair dismissal’ but this becomes a ‘day-one right’ under the Employment Rights bill.

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