When deciding who should be offered the job, recruiters should make an objective assessment of the applicants' strengths and weakness, as demonstrated in the recruitment process.
In order to avoid discrimination claims, recruiters should put aside any positive or negative assumptions they may have made about candidates' suitability based on sex, gender reassignment, marital status, race, age, disability, religion, sexual orientation or union membership. It is advisable for two people to make or agree the decision on who to appoint, to minimise the possibility of conscious or unconscious bias. In order to be in a position to counter any subsequent allegation of discrimination, companies should clearly identify and record the reason why candidates were successful or unsuccessful.
The law recognises that direct evidence of discrimination is rarely available. So the discrimination legislation requires the employment tribunals that adjudicate on discrimination claims to draw inferences from the surrounding circumstances, where appropriate. For example, if one candidate for the job fared worse than another candidate who was of a different race but had similar qualifications, the tribunal will expect the employer to be able to explain why. If a credible, non-discriminatory explanation is not forthcoming, the tribunal is likely to infer that the decision was based on the candidate's race. In particular, if a decision was based wholly or partly on the recruiter's view of what type of person would 'fit in' within the company, the tribunal may well conclude that the selection was influenced by a desire to avoid disrupting the status quo by appointing someone who was different from the established workforce in terms of sex, race, age, religion, sexual orientation or disability.
It is good practice to inform unsuccessful candidates as soon as possible in a polite and constructive manner, and to give them feedback on the reason for their failure if asked to do so.