The Equality Act 2010 makes it the responsibility of the employer (the childminder looking for an assistant or co-childminder) to ensure s/he meets the requirements of the Act. The employer must carefully negotiate the entire recruitment process from placing the initial advert, through interviewing the potential employee to welcoming the employee into the business while taking the Act into consideration.
Here are some of the points raised during recent research on the subject...
Advertising for an employee
You must avoid discrimination and discriminatory language in your job advert. For example, you cannot say you are looking to employ a full time woman to work alongside you as an assistant unless you can show why you need to employ a woman to eg care for the needs of a disabled female adolescent and you cannot ask for someone full time unless you can show that you have considered the possibility of offering the position as a job share.
If you do not feel your company has a diverse workforce, the Act says that you can advertise specifically for someone from a particular race or religious group. This means that you are now legally allowed to advertise for and employ eg a Muslim as a key worker for a group of children including a new Muslim child in the provision.
However, you cannot say in your job description that you are looking for someone ‘young’ to work with you – because you cannot refer to age. In fact, it is recommended that you do not ask for a potential employee’s age (including date of birth or dates of previous jobs) during the recruitment process in case your decision not to employ them might be seen as ageist.
Producing an application form
You cannot ask a potential assistant intrusive questions such as whether they are disabled either on employment forms or at interview unless you can show that you are asking the questions because you might need to make reasonable adjustments to ensure you are being inclusive. This is in case they feel their disability might mean you do not offer them the job... however you can ask if they need any reasonable adjustments made to your house before they come for interview. This might mean, for example, that you need to install a ramp at your door or change things around to make sure your toilet is accessible for someone using a walking frame.
However, if a potential employee does ask for you to make adjustments to your house and you do not feel they are reasonable (you cannot use cost as a reason for refusing unless you feel it would be excessive in the extreme) then you should contact a specialist legal advisor for more advice because the Act says that requested adjustments must be fair.
The interview process
As with the advertising and application processes, you must be very careful that you can justify any questions you ask at interview. For example, you cannot ask a woman if she intends to have time off for a baby... unless you can show that you have asked or would ask a man the same because it is a standard question on your application form and you want to consider how you would accommodate their wishes in the future.
Similarly you cannot ask how many sick days a person has taken at their last job because you are running the risk of being hit with a discrimination claim if you then do not employ the person and they have the same or possibly more experience, qualifications etc as the person you do employ… but an appalling history of time off for medical appointments or caring for a sick relative.
One bit of the Equality Act 2010 that made interesting reading - you cannot cut an interview short or refuse someone employment because they are trans gender and you feel uncomfortable being around them. The applicant has what is known as a ‘protected characteristic’ and you must give them the same time and ask the same questions as everyone else who applies for the job and then base your decision of whether or not to employ them on their suitability for the position.
Making the right choice for your business
Worried childminders ask me if they have to employ an unsuitable person simply because they are concerned about being hit with a discrimination claim. The answer is ‘no’ you do not have to employ a male if he makes you feel uncomfortable or have a new downstairs bathroom built because your upstairs is inaccessible or offer the job to a person from another country whose lack of ability to speak or read English concerns you.
Instead you need to carefully document that you have given every candidate equal attention. You will find that you do not need to be discriminatory because there might be lots of reasons at the job interview stage and beyond why a person might not be suitable such as their level of qualifications, previous experience, the way they behave around the children, a failed CRB or medical check etc. I would say, however, from reading the Act, that you should document your reasons at the time of the rejection. This is so that they can be justified if your decision is challenged at a later date.
Remember! If you are uncertain about what constitutes discrimination it is always best to read the Equality Act carefully and to seek specialist legal advice before doing anything that might damage your business.
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