Growing Your Workforce Part 2: Equality Considerations in Recruitment and Selection

The Equality Commission for Northern Ireland (ECNI), the corporate body responsible for promoting equality of opportunity, says of equal opportunities, “It is important to remember that being an equal opportunities employer is a process, not a one-off event, and it needs continuous commitment and work if it is to succeed.”

The Equality Commission sets out 12 steps to becoming an equal opportunities employer, one of those being to, “Ensure that your recruitment and selection procedures are fair and are founded on the principle of objectively selecting the best person for the job.”

As part of our short series on Growing your Workforce, we are going to build on some of the key recruitment and selection stages we discussed in the last article, focusing more specifically on the specific legal obligations that should be factored into the recruitment and selection process.

Compliance with legal obligations under equality legislation

Under a number of pieces of equality legislation employees, workers and applicants for employment are protected against discrimination on the grounds of protected characteristics including:

• Sex (including persons who have undergone or are in the process of under-going gender reassignment)
• Pregnancy or Maternity
• Marital/civil partnership status
• Religious belief or political opinion
• Race (including colour, nationality, ethnic or national origin, and ethnic or racial groups)
• Sexual orientation
• Disability
• Age

Employers should be mindful of avoiding requirements or other criterion which could constitute unlawful discrimination, such as:

• A job description which uses a term that is suggestive of a role being undertaken by one gender over another, for example, ‘salesman’, ‘waitress’, ‘hostess’, ‘foreman’.
• A candidate specification which applies a criterion that could, by its application, have a disproportionate negative impact on persons with a particular characteristic. Such a practice could be indirectly discriminatory, or exclude disabled persons for a reason related to their disability.  Criterion which could have this effect should be avoided unless it can be objectively justified. For example, the requirement for a role to be carried out on a fixed shift pattern, or on full time hours may exclude persons with caring responsibilities, and potentially be indirectly discriminatory towards women. Likewise, a role that seeks out “recent graduates” could exclude persons of a certain age range.
• When advertising a role, you should ensure it has wide reach. The Equality Commission’s Unified Guide on Promoting Equality of Opportunity in Employment recommends using a variety of different media to advertise a role, including an employer’s own corporate website, job centres and recruitment websites. It says “employers should not publish job advertisements in locations or publications where they are likely to be read only by persons who share a particular community background, or sex, or race, or disability, or sexual orientation, or age.”

Registered employers and monitoring obligations

Under the Fair Employment and Treatment (Northern Ireland) Order 1998, private sector employers with 11 or more employees working 16 hours or more per week are required to register with the Equality Commission and should register within one month of reaching this threshold. Public sector employers must register regardless of workforce size. 

Registered employers are required to complete and submit an annual monitoring return to the Equality Commission setting out the composition in terms of community background and gender of its employees and applicants. Organisations with over 250 employees and public authorities must always monitor the composition of promotes and leavers.

This means collecting gender and community background data from applicants at recruitment stage. This should be carried out by asking candidates to complete a separate monitoring questionnaire setting out the specific questions, legal reason for collecting the data, and what it will be used for. The completed form should be retained separate to the application so as to avoid suggestions of bias in shortlisting based on gender or community background. This is known as the ‘direct question’ method. In circumstances where it is not possible to collect the data in that way, perhaps because individuals do not wish to provide the information, employers may use what is known as the 'residuary method' to collect data. This permits employers to use other information that has been provided by the employee which provides a reasonable indication of community background.

This is a legal obligation, and a failure by registered employers to submit an annual return is a criminal offence that could result in financial penalties.

Salary

In setting pay and benefits for a role, there are a number of important legal requirements to consider.

1.National Minimum Wage/National Living Wage

The National Minimum Wage (National Living Wage for persons aged 23 and over) is the pay per hour that workers are entitled to by law. The minimum hourly rate is fixed depending on the worker’s age. From 1 April 2021, rates were £8.91 for persons ages 23 and over, £8.36 for 21 and 22 year olds, £6.56 for 18 to 20 year olds, £4.62 for people under the age of 18, and £4.30 for apprentices. This applies to all employers regardless of their size.

These rates are set to go up from 1 April 2022 to £9.50 for persons ages 23 and over, £9.18 for 21 and 22 year olds, £6.83 for 18 to 20 year olds, and £4.81 for under 18s and apprentices.

As well as applying to part time and full time staff members, the NMW/NLW applies to agency workers, casual and zero hours workers. There are only limited categories of work not covered by NMW including persons who are truly self-employed, company directors, members of the armed forces and those below school leaver age.

Employers should be aware that if a new recruit will be required to buy their own uniform, or part of it, or pay to attend training courses, those costs cannot reduce an individual’s pay below the NMW/NLW.

Failure to pay workers NMW/NLW could not only result in complaints to the Industrial Tribunal for unlawful deduction from wages, but an investigation by HMRC that could lead to significant fines as well as negative publicity.

Paying workers in accordance with the appropriate age-linked rates is not impacted by age discrimination legislation.

The Equality Commission recommends that “… employers should, notwithstanding the provisions of the National Minimum Wage legislation and the exception contained in the Age Regulations, pay all employees, regardless of their ages, the same salary or wage for doing the same work.

2. Age discrimination

In setting pay and benefits, many employers will consider service linked rewards such as additional holiday or sick pay after completion of a certain number of years’ service. This practice can be potentially indirectly discriminatory on grounds of age.

Under section 34 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 there is a specific exemption in relation to service related benefits which permits employers to offer increased pay and benefits in line with service, insofar as it applies up to 5 years’ service. Doing so will not require objective justification. Enhancement to benefits in excess of 5 years’ service will require justification by the employer but using a less stringent threshold. The usual test for justification requires employers to show that a discriminatory practice was a necessary and proportionate means of achieving a legitimate business aim. However, if an employer wants to include (for example) a service linked pay increase for employees who reach 10 years’ service, they may be able to justify it if they reasonably believe that the operation of that benefit encourages increased loyalty amongst employees and retention of experienced staff members in the workplace.

Employers are, therefore, encouraged to review their pay and benefits practices and where there are service linked benefits in excess of 5 years, consider whether it can meet one of the specific requirements under the legislation, which are:

• to encourage loyalty
• enhance motivation; and
• reward experience.

 3.Equal pay

Equal Pay is legislated for under the Equal Pay Act (Northern Ireland) 1970. Equal pay means that men and women in the same employment performing equal work must receive equal pay, unless any difference in pay can be justified.

The legal provisions were enacted to deal specifically with sex discrimination in respect of pay. There are three kinds of equal work:

• Like work – similar tasks which require the same knowledge or skills.
• Work rated as equivalent – rated under job evaluation scheme in terms of how demanding it is.
• Work of equal value – not similar or equivalent, but is of equal value in terms of demands such as effort, skill and decision-making.

If a woman proves that she is doing equal work to a man, there is a legal presumption that any difference in their pay is because of their sex, unless the employer can show that a ‘material factor’ explains the difference.

In a candidate’s recruitment market, there may be a temptation for employers to consider offering a better salary to a candidate to secure them in employment than is offered to existing employees carrying out the same role. However, employers should exercise caution as doing so could expose them to the risk of an equal pay claim from a lower paid employee of the opposite sex performing equal work.  Employers should carefully consider whether they can objectively evidence a recruitment issue with the post, such as labour market shortages, candidate salary expectations and competitor pay and benefits.

One potential way of avoiding pay disparity and a potential equal pay issue is to consider other incentives such as a one-time ‘on-boarding’ bonus, or if adding a supplement to new joiner income, to consider rolling out that supplement to existing employees in the same role.

The Equality Commission recommends that employers “… demonstrate that they are committed to promoting equality of opportunity in regard to the provision of pay and benefits by developing and implementing a policy on equal pay.” Further guidance can be found in the Equality Commission’s Code of Practice on Equal Pay, and a Model Equal Pay Policy is also available. 

Conclusion

Demonstrating commitment to equality of opportunity goes beyond compliance with legal requirements, but ensuring legal compliance with equality legislation should be the foundation from which an employer promotes equality of opportunity in all aspects of employment, including at the very beginning of the recruitment journey. The Equality Commission recommends that all employers develop and implement an Equal Opportunities policy as part of that commitment. You can find more information on the key features of an Equal Opportunities policy in one of our previous articles.