Employers can be found guilty of discriminating unfairly against job applicants at interview even when it is accepted there was no intention to do so, the Irish Business and Employers' Confederation (IBEC) has warned. They can also be found liable for discrimination by supervisors or line managers.
Discrimination at interviews not only includes discriminatory questions put to a woman such as: "How will you look after the children if you're required to do overtime?" Moreover, casual small talk can leave employers vulnerable to cases being taken against them.
Ms Caroline Browne, an employee relations executive at IBEC, says employers must have a personal specification and a job specification for each post. The personal specification should include the qualifications, experience and skills sought in the successful candidate; while the job specification should include the objective requirements of the job.
Once these have been defined, a candidate can be told that the job requires, say, shift work or overtime at short notice and asked if that would pose a problem for them, she says.
She warns that sometimes interviewers get into trouble during "small talk". "They're looking at the application form and see somebody was born in a foreign country. They get chatting about that. All of a sudden they could have a case on the basis of nationality."
She says she knows of a case where a member of the interview board "actually knew the individual and they got into small talk about marital status or children. The candidate did not get the job but a case was taken by the candidate and won on the basis of discrimination on marital status," she says.
She warns that if a candidate volunteers personal information, the interviewer should steer the interview back to the question: is this person suitable for the job?
"Ignorance isn't an excuse," she says commenting on how easy it is to unintentionally ask a question or say something that leads to an allegation of discrimination.
It is often a person in middle management who is not sufficiently familiar with the law whose gaffe gives rise to an equality case. But "the employer would be vicariously liable for the actions of a supervisor or a line manager", says Ms Browne, emphasising the need for training.
IBEC advises employers to avoid:
asking candidates how their children would be looked after if they were appointed or if they anticipate any problems coping with their children and the job;
asking a married woman how committed they are to their job;
asking an interviewee what their spouse thinks of them applying for the job;
asking a male candidate how he would feel working with females and vice versa.
IBEC says discriminatory aspects of interviews can be avoided. The organisation advises interviewers to:
open each interview by stating that the organisation is an equal opportunities employer;
ask the same questions of all candidates and tell them you are doing so - if even one candidate cannot be asked a specific question, the question should not be put to any of the candidates;
emphasise to all candidates the demands in the job specification like overtime, shift work at short notice, changing rosters or possible overnight travel;
ensure that all members of the interview panel know the requirements of employment equality legislation and its implications;
after the interview, each interviewer should weigh up each candidate's attributes against the objective criteria laid down in the personal specification;
marks should first be awarded and then discussed by the panel;
comprehensive interview records should filed for at least nine months.
Mr Patrick O'Leary, information officer at the Employment Equality Agency, says it is still common for women to be asked blatantly discriminatory questions like: "Are you married?" or "If you get this job, it may involve travelling, who's going to look after your kids?"
Best practice involves having a strategy, planning the interview beforehand and selecting a gender-balanced interview board. "If the interviewee feels uncomfortable because of the gender make up of the interview board, then questions would have to be asked," he says.
If all the men on the interview board are of higher rank than the women, "that could be discriminatory", he says.
The length of an interview could also be deemed discriminatory. If a woman is interviewed for 10 minutes while male candidates are interviewed for 45 minutes, that could be discriminatory.
When the Employment Equality Act 1998 comes into force, probably next June, the grounds for discrimination will be expanded to include gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the traveller community.