interview questions

[epsonprinters]

What is the connection between this question and child protection?

"Have you ever been dismissed or resigned from a position pending disciplinary investigations taking place? If yes please give details on a separate sheet"

BAME individuals in the public sector are twice as likely to be the subject of disciplinary action as white individuals.

Is the asking of this question, without qualification, an example of indirect discrimination?

What is the connection between this question and child protection

It may reveal that the applicant was being investigated over child protection issues but forestalled the investigation by resigning.

Is the asking of this question, without qualification, an example of indirect discrimination

Asking a question is unlikely to be discrimination. Acting on the answer may be discrimination. However, if this went to tribunal the question would be whether asking for and using this information is a proportionate means of achieving the aim of protecting children. If the tribunal find that it is, any indirect discrimination is justified and the employer is in the clear.

Hmm.

The question is on the application form. The application form does not ask the applicant to refer only to child protection issues. The employer is obliging the potential applicant to reveal all private untested matters unrelated to child protection issues into the public domain, if they wish their application to be considered.

All good modern employers (schools) specifically ask for disclosure of child protection issue related investigations only and/or criminal records. They then go on to apply for a DBS check.

This might be the reason: BAME employees in the public sector are nearly twice as likely to be the subject of disciplinary action or investigation. If one accepts that answering yes to the question greatly reduces your chances of shortlisting, it is clear that members of the BAME community will be disproportionately affected in a negative way by this question, especially if it deters them from applying (the acid test in indirect discrimination).

If a school investigates an individual on a child protection issue, it is obliged to inform the Local Area Designated Officer (LADO). This individual will decide if it needs to be flagged up on ones DBS check.

Experienced members of tribunals will be aware of the statistics re disciplinary rates for various ethnic groups. If your employer has such a question on its application form and it is in the public sector, it might be worth pointing this out to them. A very simple adjustment to the application could potentially save them an awful lot of inconvenience, money and damage to reputation.

As I say, the question the tribunal would have to consider is whether this is a proportionate means of achieving the aim. If it is, the indirect discrimination would be justified and the employer would be in the clear. If it is not then yes, it could be indirect discrimination.

There is also the question of what the employer does with this information. If it automatically reduces your chances of shortlisting if you answer yes it could be a problem. It is less likely to be a problem if the employer genuinely considers the information given by the applicant to determine whether or not it is relevant, so that a "yes" answer does not necessarily reduce your chances of shortlisting.

Just to add, the fact that a disciplinary matter may not be directly about child protection does not mean it is irrelevant. It is up to the employer to decide what is relevant, not the employee. The same is true with DBS disclosures - the DBS disclose everything (although older convictions are filtered) and the employer decides what is relevant.

Other issues involve the terms under which the individual resigned. Often there is an agreement with a confidentiality clause which effectively means the individual cannot say anything about the nature of the investigation or outcome because it often involves money.

Employers cannot ask such broad sweeping questions. The question must be relevant to the needs of the post or relevant to child protection issues. The DBS is the catch all that the employers can consider, nothing else. Allowing individual managers to decide what is relevant opens up a minefield. I have attached two examples of legitimate questions. Any employer who does not qualify their question with reference to child protection matters is asking for trouble.

Further, I think most schools would struggle to demonstrate that they have ever appointed a member of their teaching staff who have answered yes to such a question. This indicates that answering yes to such questions is an automatic impediment. Most reasonable people, not to say you are unreasonable, would come to this conclusion.

Employers be warned. My employer is in a very sticky position because it asked such an unqualified question and will soon struggle to justify it at tribunal.

It’s quite common for employees facing disciplinary action to resign in order that the disciplinary process comes to an end. I don’t think it’s a problematic question and in an area of work where someone being squeaky clean is important I think it’s perfectly justifiable. I haven’t come across the question on a job application but I have known employers state in a reference that an employee resigned pending disciplinary action. My former (very large and risk averse) employer did.

I think the indirect race discrimination argument is clutching at straws as well.

The DBS is the catch all that the employers can consider, nothing else

I'm sorry but that is rubbish. The advice of anyone who is involved in child protection is that you absolutely must not consider only the DBS. That is one of the things you look at but it is by no means the only one.

Allowing individual managers to decide what is relevant opens up a minefield

Who said anything about individual managers deciding? It is up to the employer to decide by setting a policy that will determine which answers are acceptable and which are not. That is what happens with DBS checks. If a DBS check comes back showing convictions the employer must decide if they are relevant to the role in question.

My employer is in a very sticky position because it asked such an unqualified question and will soon struggle to justify it at tribunal

If the tribunal hasn't heard the case yet you have no idea if they will struggle to justify it. To say again, the question is whether it is proportionate. As we are dealing with child protection, the tribunal may well take the view that a lot of things that wouldn't normally be allowed are proportionate and therefore permissible. Until the tribunal has decided you are guessing. I am not saying you are wrong - that is for the tribunal to decide when it is in possession of all the facts. But even if the tribunal decides your employer was wrong, that does not necessarily mean they would arrive at the same decision for another employer asking the same question.