Discrimination and Unconscious Bias in Recruitment

This is a guest blog by REC business partner JMW Solicitors LLP 

Everyone has biases even if they think they do not. Biases can be so ingrained in us that most people would not be able to recognise some of the biases they hold. Positive biases such as tending to hold good expectations, or having positive views about certain things can sometimes be beneficial. However, when people hold negative biases, it can lead to bad decision making and problems can occur when these conscious or unconscious biases give rise to discrimination against people who have certain protected characteristics under the Equality Act 2010 (EqA 2010) such as race, religion or belief, age and disability etc.  

 

What is unconscious bias? 

From a young age, we must try and make sense of the world, so we rely on our environment and life experiences to help us in doing this.  This can lead to stereotypes and prejudices which transform into biases, hidden in our unconscious mind and impact how we treat people and can in some circumstances lead to inequality. In 2024, HR or recruitment professionals know that it is unlawful to discriminate in the recruitment process and will be determined not to discriminate. However, we all have stereotypes and prejudices which have stayed with us from childhood and can creep into any decisions that we make. This is known as unconscious bias. Unconscious biases can influence a person’s judgment without them being aware of it. 

There have been many studies to understand unconscious bias. The most popular is the infamous simulated candidate’s study. In this study,  researchers produced and submitted the exact same CV, with the exact same qualifications and experience for a role but  changed the candidates name from a male name (John) to a female name (Jennifer). The results of the experiment found that the fake male candidates were invited to the next stage of the recruitment process and were even being offered a higher salary than the fake female candidates. At the time, the recruitment panel did not know that the CV’s were identical.  

Further studies done by The Employers Network for Equality and Inclusion found that in the UK, 34.1% of those surveyed held a bias against disabled people over non-disabled people, and 67% of the British public surveyed felt uncomfortable when talking to people with a disability. Although most people are aware that the law tells us that we cannot discriminate, it is almost a natural tendency for most people. Both studies involved participants of different genders and ages demonstrating that  unconscious bias can exist in anyone. Unfortunately, unconscious biases still exist in recruitment and can be detrimental as they expose recruitment businesses to the risk of discrimination claims.  

 

Unconscious bias turning into discrimination: 

Without effective management of unconscious bias, most recruiters will continue to be  unaware that they even possess deep-rooted unconscious biases against candidates and there is a danger of this leading to discriminatory acts. The EqA 2010 provides protection to work seekers engaging recruitment businesses even when they are not in an employment relationship with either the recruitment business or the recruitment businesses’ client. The legislation provides protection against discrimination, but it does not necessarily stop discrimination from occurring. Instead, there are penalties for those who do discriminate.  

 

The Protected Characteristics: 

There are 9 protected characteristics under the EqA 2010 and people who hold these characteristics are protected from discrimination based on them. The protected characteristics are: 

• age; 
• disability; 
• gender reassignment; 
• marriage and civil partnership; 
• race; 
• religion or belief; 
• sex; and 
• sexual orientation 

Recruiters or employers should also be mindful of discriminating against candidates for characteristics that are linked to the above protected characteristics such as tattoos, piercings,  jewellery, hairstyles or the requirement to have a particular working pattern. 

 

The different forms of discrimination  

The different forms of discriminatory behaviours include: 

• Direct discrimination – occurs when an employer or recruiter treats somebody less favourably because of a protected characteristic.   
• Indirect discrimination – when an employer or recruiter applies a provision, criterion or practice (PCP) to everyone for example an age limit, so that it is more difficult for certain groups with a particular protected characteristic to comply and it is to their detriment. The application of a PCP can be justified if the recruitment business and/or employer can show that it has applied the PCP proportionately and it is a means to achieve legitimate aim.   
• Harassment- occurs through offensive conduct which relates to a protected characteristic and creates a hostile and intimidating environment.  
• Victimisation-occurs when a candidate is subjected to retaliation for complaining about discrimination. For example, the withdrawal of a job offer after a candidate complains about harassment through offensive comments made at an interview. 

  

The most common form of discrimination in employment is disability discrimination. Disability is defined as the ‘physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out day to day activities’. If someone is disabled, the potential employer or recruitment business bears the onus of making reasonable adjustments for those candidates to reduce any disadvantage that they have in comparison to non-disabled people during the recruitment process.  

If, for example, an online application or the results of an aptitude test shows multiple spelling mistakes, employers and recruitment agencies must be alive to the possibility that the candidate could have a disability and could explore this and where necessary, they could adjust their recruitment processes to have a verbal test or a telephone application to assist  those who may have a learning difficulty such as  dyslexia. The automatic stance should not be that the disability is a barrier to them being employed, rather that questions should be raised as to what reasonable adjustments can be made to help the candidate to give them a level playing with a non-disabled person.  

 

Occupational Requirements: 

There are occasions in which it is lawful for recruiters and prospective employers to prioritise candidates with a particular protected characteristic when the protected characteristic is a requirement of the role because of the nature of the role. This is known as an occupational requirement. Examples include authenticity for a play, or a show where a certain age or race is required to fulfil the role or, decency/privacy such as hiring certain staff to be in men or women only places such as changing rooms.    

Whilst occupational requirements do exist, a recruiter/employer must be able to prove that they are trying to achieve a legitimate aim by imposing this requirement. Recruiters should question the actual need for relying on this justification as failure to do so can expose members to the risk of a discrimination claim. If the occupational requirement is only a small part of a larger role, the first step would be to consider whether  someone else who is already employed could fulfil that small part of the role to prevent discrimination in recruiting for the original role.  

It is therefore important that upon placing certain requirements for a role, recruiters should challenge themselves and question whether the requirement is really necessary or if there is an ingrained bias that has resulted in a limit to the scope of the requirements for the role and if there is a viable way around this.  

 

Section 60 EqA 2010 

Section 60 of the EqA 2010 specifically refers to recruitment and makes it unlawful to ask questions about disability and health before a job offer is made. Where a job applicant is asked health related questions, they may feel like their chances of succeeding in the role have been compromised and they may bring a claim for discrimination.  

Section 60 is not there to prevent employers from selecting the best candidate for the job; it is there to prevent disability or health information being used to sift out job applicants without first giving them an objective and unbiased opportunity to show they have the skills to do the job. There are exceptional circumstances where section 60 can be overlooked. Recruiters and employers can ask health and disability questions only where a health condition would prevent a worker form carrying out a function that is central to the to the role that they are applying for, where they might require reasonable adjustments to take part in the recruitment process or where there is an occupational requirement relating to health (see occupational requirements above).  

 

Discriminatory Statements 

Section 60A was introduced to the EqA 2010 on 1 January 2024 and provides that a discriminatory statement made in connection with a relevant decision may constitute direct discrimination, even if there is no active recruitment exercise and no identifiable victim of the discrimination.  

The person making the discriminatory statement can be an employer, recruiter, or person in charge of making or overseeing employment services or who is connected to recruitment decisions.  

A relevant decision is a decision about whether to offer employment or work in various contexts such as who to employ/appoint  and  promote to a position or which group of people to use as the selection pool for a certain position.  

To further protect against discriminatory statements, the new legislation goes as far as to penalise employers for discriminatory statements even if they were not the ones to make the discriminatory statement. Section 60A(4) of the EqA 2010 states that a discriminatory statement made by a person who is not an employee of the employer, nor an agent of the employer, will be treated as if it were made by the employer if there are reasonable grounds for the public, or a section of the public, to believe that the person making the statement is capable of exercising decisive influence on a relevant decision made by the employer. This also depends on the status of the third party making the discriminatory statement as well as the nature, content and context of that statement. Employers should be quick to disassociate themselves from any discriminatory statements being made surrounding their recruitment practices to ensure they are not subject to discrimination claims.  

Sections 60A (5) and (6) of the EqA 2010 makes it clear that it is irrelevant whether anyone has actually been affected by the discriminatory statement made (there is no direct victim) and this can apply to general statements made outside an open or active recruitment process.  

An example of this is in the case of NH in 2020 where the European Court of Justice held that a senior lawyer’s discriminatory statement on an Italian radio program was unlawful discrimination when he publicly stated he would never hire a homosexual person to work in his law firm. There was no active recruitment process at the time for the same firm, but the remarks were capable of impeding access to employment for some people. 

Breaching Section 60A is unlawful and the Equality and Human Rights Commission (EHRC) has the power to investigate any potential discriminatory statements and take enforcement action against the guilty parties. The new law may seem punitive especially since public perception can be an influencing factor in the ECHR investigations however, the ‘no smoke without fire’ adage could come into play. If recruiters and employers can show that they have clean recruitment practices by putting their unconscious biases to the side and provide all applicants an equal and fair chance regardless of their protected characteristics, then organisations should be safe to continue business as usual.   

 

What can recruiters do to ensure they are treating applicants fairly? 

All organisations should engage in regular monitoring of their own recruitment processes. Monitoring can highlight deficiencies in the whole process and can provide a defence if a discrimination claim is brought as the organisation would be able to prove that they have robust non-discriminatory recruitment processes in place. 

Hiring managers or recruiters should avoid asking health or disability related questions and should not give any comments about their hiring practices which could be misconstrued and lead people to believe they have certain ‘non-official’ hiring rules such as preferring people of a certain race over others. This could cause reputational damage to businesses and could be a  breach of Section 60A of the EqA 2010 even if the practice is not in place.  

Where job descriptions list personal characteristics as requirements for a role, recruiters and employers should ensure that no unconscious biases have crept in so as to exclude prospective applicants with certain protected characteristics. For example, requiring candidates to be a certain height to carry out certain aspects of a role could discriminate against women who tend to be shorter than men, especially when there is no legitimate reason for the required height, or adaptations could be made to ensure that shorter applicants can carry out the height related aspects of a role. Additionally, the requirement to have a certain qualification such as a media studies degree could be discriminatory towards older prospective candidates as they would not have had the opportunity to study media studies which is a relatively modern qualification. By opening up the role to candidates with a degree in media studies or equivalent, the role is opened up to candidates of all ages collapsing any potential age-related barriers.  

To become more diverse, equitable, and inclusive, many companies have turned to unconscious bias training. However, increasing awareness usually is not enough to tackle unconscious bias alone. Recruiters or hiring managers must be made aware of any unconscious biases they hold through different exercises, including fictional scenarios and role-plays. They should be taught how to manage their biases, how to change their behaviour and track their progress. Organisations must encourage interactions amongst people from different groups and any policies and document related to recruitment such as template wording in job descriptions must be regularly reviewed and re-written if they leave the  potential for discrimination.  

Disclaimer 

This article is for general guidance only and should not be used for any other purpose. It does not constitute and should not be relied upon as legal advice. 

If you would like to discuss this article or any recruitment issue in more detail, please contact Paul Chamberlain of JMW Solicitors LLP either by email at paul.chamberlain@jmw.co.uk or by telephone at 0161 838 2762.