Law at Work: A Fair Chance

Selecting the right person for a vacancy, promotion or even a surviving post is fraught with legal and practical difficulties

  • Date: 01 July 2009

IN A RECENT criminal court case, a man was convicted of indecent exposure having entered an interview room naked (but for a clipboard) to the natural consternation of the female interviewee for a vacancy. His defence was that this constituted a ‘test’ of the candidate’s reactions under stress. The court was unconvinced.

However, even under less controversial circumstances, selecting the right person for a vacancy, promotion or even (in these days of retrenchment and cutback) for a surviving post, in competition between redundant staff, is fraught with legal and practical difficulties for practices.

Decisions in recruitment and selection are vital to the effectiveness of organisations, and maintaining the credibility and fairness of any selection system is essential to preserving the reputation of the organisation. The most pressing problem for employing organisations is ensuring that subjectivity is eliminated from such decisions, so far as is possible – given the involvement of human beings in the process.

Employment tribunal case law is strewn with successful claims of discrimination arising from recruitment and selection decisions which, with forethought, might easily have been avoided by the employer.

Why applicants were ever asked about potential gynaecological problems, intentions to start a family or to get married, difficulty in working with people of a particular race or religion or the candidate’s drinking habits is a mystery to most objective observers – but all of these questions have been asked of applicants for employment over the years and have resulted in successful litigation.

Questions in a selection process can be searching and personal – provided that they are relevant to the skills, aptitudes and demands of the job. For example, if a job requires that the post holder travel away from home at very short notice or that they stay on to work overtime with no notice at all (a police officer involved in a stakeout or a social worker assisting a vulnerable client in a crisis, for example), then questions about whether the candidate has family or caring responsibilities, which constrain their flexibility in working hours, are not only reasonable but, arguably, essential to ensure that the right person is selected. The same questions to candidates for a typical clerical job or a cleaner post would not only be irrelevant, but potentially discriminatory.

Similarly, questions about health and disability can be legitimate – provided they are framed in the context of the physical or mental demands of a job or in the context of a genuine enquiry about whether adjustments to the working arrangements need to be made to reduce or eliminate the impact of the disability.

It may sound obvious, but the starting point for any selection process for a post must start with an assessment of the qualifications, skills and experience that will make up the person specification for the job. These requirements can be subdivided, for selection purposes, into ‘essential’ and ‘desirable’ criteria. Where candidates do not provide evidence of their suitability against the essential criteria, they should not be interviewed. Those who pass the first hurdle can then be assessed, in competition, against the desirable criteria. If you find yourself asking questions which are not aimed at probing for evidence of compliance with the person specification, then you should pause and consider why you are asking the question. If you cannot give a sound reason for asking the question then it is probably prudent not to do so.

A good example is: “What school did you go to?”. This question, which is commonly asked on application forms, is potentially tricky from a legal viewpoint. The name of the school may indicate the likely religion of the candidate, for example. The essential question is about the qualifications obtained by the candidate – not where obtained. Why invite needless trouble?

Another useful technique for avoiding legal risk is to separate the candidates’ personal details (name, age, gender and any questions about race, religion, sexual orientation or disability – asked for equal opportunities monitoring purposes) physically from the rest of the application form so that decisions on suitability are taken purely on information supplied about qualifications, experience and demonstrable skills. This not only has the benefit of concentrating the minds of those selecting the shortlist but also ensures that, if challenged about discrimination in the selection process, the organisation can clearly demonstrate that no such bias was evident – because the selectors were ignorant of the candidate’s personal details.

If interviews are similarly focused on gathering evidence about suitability – as opposed to chatting aimlessly or, at worst, asking perilously irrelevant questions – then the subjective aspects of the process can be reduced as far as possible. Oh and keep your clothes on!

  • Ian Watson, Law At Work

Law At Work is MDDUS preferred supplier of employment law and health and safety services. For more information and contact details please visit

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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