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Don’t have your head in the clouds when it comes to recruitment!

We’ve recently seen an upsurge in attempts to bring claims against practices linked to recruitment and interviewing. It’s possible that at least one of these involves a ‘serial litigant’, who has applied for a job with the main aim of bringing an action against the practice when not selected.

A prospective employee can of course bring an action in tribunal for discrimination if they can point to possible less favourable treatment because of a protected characteristic under the Equality Act 2010.

What are protected characteristics?

  • Age
  • Disability
  • Gender reassignment
  • Gender
  • Marriage and civil partnership
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Refusing to select for interview, or to select for employment after interview, because a candidate has been subjected to a detriment due to any of the protected characteristics above is unlawful. An exception is where you cannot employ a candidate because their disability is so severe there is no reasonable adjustment that the employer could make to accommodate the disability.

Interview notes

Interview records are of course most likely to contain personal data and therefore an applicant can make a request to see them.  If you still have the interview notes you must disclose them to the applicant.

It’s worth bearing in mind a few things not to ask, such as questions about childcare or medical conditions, which could lead to claims that you have treated someone less favourably on the basis of their replies. Consider what notes you need make – if it’s not written down, you don’t have to disclose it. Keep notes brief, factual and as objective as possible. You always have the option of writing up notes onto a standard form, recording the key points which led to your decision but not much more, and destroying the handwritten ones you made during the interview.

How long should I keep records?

You should keep the application form/CV and interview summary form for approximately 6 months as protection against a discrimination claim.  Candidates have three months plus ACAS conciliation time (generally about a month but can be longer) to bring a claim, so after 6 months there should be little risk of a claim and you can destroy your records.

Please note, the information in this article is for general guidance only, and is not a substitute for specific legal advice on any issue.


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