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Research by professional association for HR management professionals CIPD and diversity consultancy The Clear Company has found that discrimination in recruitment remains a huge barrier to diversity and inclusion, but most is done unconsciously.The “Attitudes to employability and talent” report found only 10 percent of those surveyed were targeting parents returning to work in hiring activity, just 9 percent older workers and 11 percent individuals with disabilities.

This is despite the fact that respondents had scored each of these groups as above average in the top three attributes that they consider make an individual employable.

According to Dr Sybille Steiner, partner solicitor at law firm Irwin Mitchell, where unconscious bias is against a protected characteristic, such as age, disability, gender assignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation, it can be discriminatory.

“For example if during a recruitment process an employer ignores the skills and experience of a candidate who is a different race or gender than them and appoints another candidate who is the same race or gender, this could be discriminatory,” Steiner told Recruiter.

Also commenting on the findings, Christopher Tutton, partner at law firm Constantine Law, told Recruiter the way the burden of proof works in discrimination claims is designed to allow Tribunals to punish employers in cases where something looks odd and there is not a good explanation from the employer as to why a decision has made.

Consequently, Tutton advises in-house recruiters to ensure proper records are kept during the recruitment process to guard against unconscious bias.

“Make sure any selection decisions are recorded properly so they can evidence why someone was not selected for progression through their job application process, rely on objective criteria, have the same questions in place for every candidate that applies and as far as possible share the decision out among the selection panel because that can also help combat any allegation that there has been unconscious bias in the decision made.”

But Tutton warned agency recruiters should also ensure there is not any unconscious bias in their decision-making.

“Recruiters will not have a discriminatory brief in 99 percent of cases from the end client but they make some assumptions about what the employer wants, so again the same applies — there should not be unconscious bias in any recruitment decision-making.

“If you put a candidate who is a young, white male and you are excluding women of child bearing age, then you are exposed unless you can point to objective factors as to why one candidate was put forward over another.”

Meanwhile, Jacqueline McDermott, consultant solicitor at law firm Keystone Law, told Recruiter diversity training is very important to tackle the issue of unconscious bias.

“Equally recruiters could implement equal opportunity reviews/audits to monitor the level of successful recruitment within diverse groups against the number of applications, if they do not already.

“Educating staff and monitoring at a basic level could improve matters.”

Alison Treliving, partner at Squire Patton Boggs, agrees. She told Recruiter: “Whether someone discriminates consciously or unconsciously is irrelevant in the eyes of the law.

“The Tribunals are not interested in motivation. Therefore, it is always advisable for managers to receive training on unconscious biased in order to raise awareness and try to avoid this happening.” — Recruiter.