If you ask these questions you’re at high risk of an employment tribunal claim for pregnancy and maternity discrimination or sex discrimination, which will be very difficult to defend.
A key requirement of any role is an ability to do the job, and anything that gets in the way of that will inevitably count against a candidate. With that in mind, it seems imminently reasonable, at first glance, that an employer should be able to ask candidates if there is anything that could affect their ability to do the job – including existing family commitments and pregnancy.
In a recent YouGov survey carried out on behalf of the Equality and Human Rights Commission, 59% of employers agreed that a woman should have to disclose whether she is pregnant during the recruitment process. Additionally, 36% believed it was reasonable to ask a woman about her family plans and 46% thought it was reasonable to ask women if they have young children when recruiting. 44% of employers thought women should have to work for their employer for at least a year before deciding to have children and 41% felt that pregnancy created “an unnecessary cost burden” on employers.
The findings of this survey indicate that many employers either aren’t aware of, or disagree with, the law in this area.
Under the Equality Act it is unlawful to discriminate not just during the course of employment but also:
In the recruitment process itself
In the terms upon which you offer employment
By not offering employment.
Refusing to employ someone because she is pregnant is direct pregnancy and maternity discrimination, to which there is no defence. This is true even if the role that you are recruiting for is a temporary one and the woman will be on maternity leave for some or all of the duration of the contract.
Refusing to employ someone because she has childcare commitments could also amount to unlawful sex discrimination. If however there is a key requirement of the role that the candidate is unable to fulfil due to childcare (for example, the need to travel and stay away from home regularly, or to work overtime at short notice) and that requirement is applied to all candidates, there is the defence of ‘objective justification’ open to you. To rely on this defence you have to show two things:
1 That the requirement you are imposing is in pursuit of a ‘legitimate aim’ – for example the need to meet customer demand at particular times of the day
2 There’s no other way (within reason) that you could achieve that aim – i.e. that the requirement you’re proposing is a ‘proportionate means’ of achieving it.
You could, therefore, legitimately ask all candidates if, for example, they are able to travel abroad and stay away overnight, but only if the questions are linked to a key requirement of the role.
Discrimination claims can be made not just by employees, but also by candidates even before they have joined you. The abolition of employment tribunal fees in July 2017 means that there is much less of a financial disincentive to bringing a claim.
The Equality Act does not make it unlawful to ask questions about pregnancy, family intentions and childcare, but if you do ask them, and the candidate is then unsuccessful, a tribunal could draw an inference that the reason the candidate didn’t get the job was for one of those reasons.
The best advice is to stay clear of discussions about pregnancy and childcare until after you’ve made your recruitment decision!
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