Ignorance of law relating to recruitment is frightening

Andrew Watkiss applied for the job of company secretary with the construction firm J.D. Laing. Having been interviewed by the chairman of the company for the £60,000 (€76,184) per annum post, Mr Watkiss received the job offer and proceeded on his merry way to the medical.

The medical revealed that he was a schizophrenic and the job offer was promptly withdrawn. Bad move! Under British and Irish law, discrimination on the grounds of disability is illegal, so J.D. Laing is now paying sizeable damages to Mr Watkiss.

Many employers are unaware that legislative provisions are now in place - under the Employment Equality Act, 1998 - making it illegal to show bias or discrimination on the basis of the candidate's sex, marital status, family status, sexual orientation, religion, age, disability, race or membership of the travelling community.

Consequently, employers should be careful that questions which are actually discriminatory, or which could give rise to an inference of discrimination, are not posed. That is, questions relating to sex, marital status, age, family responsibilities and so forth should be avoided - both on the application form and at interview. Prior to this 1998 enactment only discrimination on the grounds of sex and marital status was prohibited. Yet surprisingly, many of Ireland's most reputable employers have fallen foul of this provision, finding themselves in murky legal waters for the manner in which they handled their recruitment and selection process.

Whilst the new Equality Act will force employers to explain themselves in the event of a legal challenge, it is also interesting that in 1998 the Freedom of Information Act took effect, giving job applicants "the right to be given reasons for decisions taken by public bodies that affect them". Arising from cases already brought under the Act, the Information Commissioner has determined that shortlisting boards and interviewers must make the notes in respect of unsuccessful interviewees available to them, provide access to the criteria and marking schemes used by the board and advise interviewees of their order of merit and actual marks.

This practice will extend to private sector employers shortly, when the EU Directive on Data Protection, which provides for access to manual files, is introduced to our statute books.

The frightening ignorance amongst Irish employers about the legal provisions associated with the recruitment and selection process was remarked upon in Ian Douglas's recent study of the subject at the Dublin Institute of Technology. Mr Douglas revealed that many companies were in blatant contravention of key sections of the new Equality Act.

One device noted by Mr Douglas - for sidestepping legal complications at the recruitment phase of the process - is to look for applications via a curriculum vitae. A cursory survey of job advertisements in the national media reveals that about two-thirds of employers now ask interested parties to apply in this manner - as opposed to via an application form.

This ensures that the employer cannot be accused of looking for information which could be construed as breaking the law, as the CV content is at the applicant's discretion. That is, it eliminates risks in respect of allegations of illegal discrimination which can arise from the design of an application form.

However the key limitation of the CV is that the information that the employer needs may be missing. Each CV will be in a different form, omitting various pieces of relevant information and hard to use for screening or shortlisting purposes. Where a large number of applicants is expected, the application form can help considerably in the shortlisting process. Furthermore, given that research shows that an estimated one in four lie when applying for work, and one in three significantly massage their history, the CV approach may afford too much scope to the creative applicant.

However there are certain risks associated with the application form approach. For example, when a job seeker applied for a post with the Medical Council some years ago she was asked to complete a form specifying her marital status and the number of children she had. The fact that this information was sought prior to interview supported her claim that family status and marital intentions were considered relevant to the selection process. The Equality Officer agreed with her. So did the Employment Equality Agency, which commented that the case highlights the necessity for employers to delete such questions from application forms, otherwise such forms "can be introduced as evidence to sustain an allegation of discrimination".

This case throws up the validity of a host of questions which frequently appear on application forms. For example, questions regarding age or date of birth or disability need to be carefully considered before being posed. Mr Douglas surveyed the top 100 Business & Finance companies for 1999. With about half of the respondents using the application form route, he concluded that "a considerable number were asking questions that would be seen to indicate an intention to discriminate".

Those companies which he adjudged to be safe included Glanbia, Superquinn, Waterford Crystal and Pfizer. However a host of other companies posed questions in respect of gender, marital status, family status, age, date of birth, place of birth, nationality and disability. In fact more than four out of five of the companies surveyed inquired as to the applicant's age or date of birth.

The bottom line for employers now seems to be that if it's not directly relevant don't ask it. And even if it is directly relevant, be careful about when and how you ask it!

Dr Gerard McMahon is a lecturer at the Faculty of Business, Dublin Institute of Technology and is the Institute of Personnel & Development's specialist tutor in selection interviewing. E-mail: ppl1@indigo.ie