Recruiters who suspect their clients are asking female candidates potentially unlawful questions about their plans to have children risk sharing the stand at an employment tribunal unless they take action

The warning follows research published by the Equality and Human Rights Commission revealing that of 1,106 senior business decision makers surveyed, around one-third (36%) of private sector employers agree that it is reasonable during the recruitment process to ask women about their plans to have children.

Meanwhile, six in 10 employers (59%) agree that a woman should have to disclose whether she is pregnant during recruitment, and almost half (46%) of employers agree it is reasonable to ask women if they have young children.

But employment lawyers have told Recruiter that employers asking such questions risk being taken to tribunal, as do the agencies that serve them if they know their client has adopted such an approach with the candidates they have put forward for interview.

Phillippa Canavan, senior associate at Squire Patton Boggs, told Recruiter the law firm advises hirers and recruiters alike to refrain from asking any interview questions about pregnancy and young families as this gives a rejected applicant grounds to bring a discrimination claim on the basis she was unsuccessful due to her pregnancy, maternity or sex. More women than men still take the primary role for childcare responsibilities.

“Asking the question is not itself unlawful, but it places a heavy burden on the recruiter or hirer to justify any later rejection – after all, if you did not intend to take maternity or pregnancy into account in your decision, why ask about it?

“It is apparent from these statistics that this practice is still deplorably commonplace. Recruiters that want to build strong client relationships should not be shy to highlight the risks of such questioning to hirer clients.

“Even if the hirer would secretly prefer the recruiter to act as a filter of such applicants, the client should be grateful for the recruiter’s help with avoiding litigation. If the request by the hirer to filter out such applicants is express, however, recruiters should carefully consider whether they can continue to act on that brief.

“The recruiter that stands by and does nothing in the knowledge that the hirer is taking this potentially unlawful approach to its recruitment could find itself summoned as the claimant’s witness or even as an actual respondent in a tribunal case.”

Christopher Tutton, partner at law firm Constantine Law, agrees, warning recruiters to be “very careful” that they are not complicit in the filtering of candidates by clients, and that they do not ignore client attempts to sift out female candidates who may have childcare responsibilities or who may plan to have children.

“Recruiters could easily become embroiled in legal action brought by the unsuccessful candidate. Recruiters should also ensure that under their commercial terms with clients, that they are indemnified for any liabilities arising from discriminatory acts or omissions of the client.”

Meanwhile Dr Sybille Steiner, partner solicitor at law firm Irwin Mitchell, warns recruiters and employers should also consider the potential reputational damage to their businesses.

“An employment tribunal can make an award of compensation (which can include a sum for injury to feelings) against an employer. It can therefore be costly for employers who discriminate against pregnant employees and can also cause reputational damage.    

“In addition to an employer, recruitment agencies can be liable to an applicant or potential applicant for discrimination, harassment or victimisation under the Equality Act. It is therefore in both the employer and the recruiter’s interest to avoid any unlawful pregnancy discrimination as this could cause legal repercussions as well as reputational damage to both organisations.”

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