Karen Harvie, employment partner at Shoosmiths Edinburgh offers expert legal insight for hoteliers and hospitality recruiters who need to ensure their recruitment processes are fair and avoid falling foul of claims of discrimination.

In the midst of Brexit uncertainty and its ramifications for non-UK nationals living and working in the UK, and in a culture where flexible working is increasingly in demand, employers must ensure discrimination does not, consciously or unconsciously, enter into their recruitment process.

The Equalities Act, which is the source of anti-discrimination legislation in the UK, applies to job applicants and to those already employed. Throughout the whole process, care must be taken not to discriminate.

 

Even deciding where to place an advert for a vacancy can lead to unintentional discrimination. For advertising in a publication or web forum that’s targeted at, or more likely to be read by, a particular section of society can limit the pool of potential candidates and lead to claims of being discriminatory.

 

Even the pictures a hotelier chooses to use when advertising a vacancy can be evidence of discrimination. Are only women depicted, are they all white or all young?

 

Think very carefully before deciding a particular role must be filled on a full-time basis. Women, who still bear the majority of childcare responsibilities, are considered more likely to seek part time work. Similar care should be taken before insisting on a work pattern that might discriminate against a particular religion. Equally, a time based experience requirement should be used with caution to avoid age discrimination. It is better to set out the depth and breadth of the skills required for the role.

 

Unconscious prejudices can emerge at the shortlisting stage so it is a good idea to have more than one person involved in the selection process. This dilutes unconscious bias and the point scoring or assessment criteria should be clear from the outset.

 

Never overlook the fact that employers have a statutory responsibility to check a person’s eligibility to work. There are hefty fines for failure to do so. It is good practice to require appropriate evidence of eligibility to work from every recruit. Not just those candidates you assume may be affected by, for example, their accent.

 

In light of the above, employers often decide to outsource their recruitment process. However, that approach too is not immune from potential pitfalls. For discrimination by an agency can lead to liability for the employer! Consequently, insist the agency recruits in accordance with your equal opportunity policies.

 

Finally, how much feedback should you give to candidates you have rejected? After all, feedback can demonstrate a ‘fair and transparent’ recruitment process and may leave the individual feeling well disposed towards your business. However, I’d recommend having a clear policy in place to ensure nothing communicated during the feedback stage can be misconstrued as evidence of discrimination.

 

With potentially fewer EU nationals coming to work in the UK and some leaving, employers in the hotel and hospitality sector will be acutely aware of the need to develop an effective recruitment strategy to fill vacancies. In the process, it is very important not to overlook the need to ensure any such recruitment is conducted fairly and free of bias.

www.shoosmiths.co.uk

 

Karen Harvie is a partner and head of the employment team in Edinburgh at the national law firm Shoosmiths.


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