Dear Jeremy, ever heard of the Equality Act?

Is it OK if an employer asks a job candidate questions about their childcare arrangements?

The question has come up because in a ‘Dear Jeremy’ article in the Guardian (a sort of workplace agony uncle column) A reader wrote in describing a job interview in which she was asked how she would meet the requirements of the job while also providing care for her two children. Jeremy replied by suggesting that, while poorly expressed, the question was a fundamentally fair one. This is what he goes on to say:

At a cool, factual level, it is indisputably the case that when women are carrying the majority duties of bringing up young children they need to be more inventive than their male partners in programming their various work and home responsibilities. And when a child’s illness or demands from school intervene, it is often the mother rather than the father who chooses (or is chosen) to do the necessary juggling – which may well have a brief impact on her timekeeping. Most are skilled at covering or working late, and take pride in ensuring that the impact on work is minimal. This allocation of responsibilities between parents may be unfair and may well be unnecessary – but it’s certainly not uncommon.

The male interviewer who asked you how you would cope bearing in mind that you had two children was certainly guilty of clumsiness and insensitivity – but to his not very empathetic mind, he was simply acknowledging an understood reality and wanting to know how you managed it. In that respect I honestly don’t see that there was anything inherently offensive about his question. I think your immediate reaction was a bit extreme, and I fear this reaction may have disproportionately coloured your view of the entire company.

I found out about this when Simon Jones tweeted a link to a blogpost by Ruth Cornish giving an alternative (and much better) response to the problem. Its really well worth reading and I won’t add anything to what she says about the experience of being a working mother and suffering discrimination as a result. I shall ‘check my privilege’ as I believe the current phrase has it and concentrate at ‘a cool, factual level’ on the legal position.

How discrimination works

The Equality Act does not (with one exception*) limit the questions that an employer can ask at a job interview. In that very technical sense asking a woman about her childcare arrangements is probably not illegal in itself. However it may well be strong evidence that an act of direct discrimination has occurred.

Direct discrimination happens when someone is treated less favourably because of a protected characteristic, of which sex is one. If, therefore, an employer asked about childcare arrangements to draw attention to its state-of-the-art creche facilities or award-winning approach to flexible working then that might be OK, because it wouldn’t involve less favourable treatment.

But of course that is not the situation here. If an employer asks about children, then a Tribunal may well ask why it is so interested. Any employer tempted to answer the question in the same way as Jeremy does is doomed to lose the case. The assumptions that Jeremy makes about where the burden of childcare falls are based on sex and an employer who declines to employ a woman because of those assumptions is clearly treating her less favourably because of sex however carefully and tactfully it tries to express the fact. There is no defence of justification to a direct sex discrimination claim. The validity of Jeremy’s assumptions are neither here nor there. It simply does not matter whether ‘in general’ women are more likely to compromise at work to meet obligations at home. This is not an assumption that employers are entitled to act upon.

It is also worth noting that employers cannot avoid sex discrimination simply by asking everyone the same question. It is not the question that is discriminatory, but the assumptions that underlie it. Asking men about their childcare arrangements will not help if the Tribunal believes that it was the answers from women that the employer was really worried about.

Don’t forget indirect discrimination

Employers are of course entitled to know about the extent to which a job applicant is committed to the job and will be able to devote time to it. They simply have to avoid making their own assessment of that based on stereotypical views of the role of women in the family.

But they also need to know about the risk of indirect discrimination. Suppose the employer were to say ‘this is a busy job which requires very punctual attendance and reliable timekeeping, Is that something you are comfortable with’?  There is no direct discrimination there because (assuming there is no subtext) they are not making any assumptions about the ability of women to meet the requirement. But there may be indirect discrimination.

Indirect discrimination happens when an employer has a practice which causes a particular disadvantage to a group which shares a protected characteristic (like women, for example) and which it cannot demonstrate to be a proportionate means of achieving a legitimate business need or objective.

Now here’s the fun part. In an indirect discrimination case, the generalisations made by Jeremy about how childcare is typically managed may come to the fore. An employer cannot act on the basis that the generalisations are true in any particular case because that would be direct discrimination. However, if we can show that on the whole they are generally true then that would help to establish the ‘particular disadvantage’ needed for an indirect discrimination claim.  If  women in general find it harder to meet strict attendance and timekeeping requirements because of their caring commitments then a requirement to do so will case them a particular disadvantage.

I really need to emphasis the ‘if’ in that least sentence. I doubt we could make a case that a  requirement for good timekeeping causes a particular disadvantage to women. However a requirement to work additional hours at short notice, or to work at weekends or travel extensively might well cause a particular disadvantage for the sort of reasons that Jeremy is talking about.

So even if a question is framed in a completely neutral way, the employer may still be liable for indirect sex discrimination. Crucially, however, the employer has a defence of justification available.  As long as the employer can show that the job requirement is a genuine one and is proportionate to the actual needs of the business, then asking candidates about their ability to fulfil the requirement will be fine.

But asking job candidates about their childcare arrangements is a really bad idea leaving an employer wide open to discrimination claims. In the case of the woman writing to Jeremy she is perfectly within her rights to complain – although whether she would consider it worth her while to bring an actual Tribunal claim would be a matter for her.

As for the employer, if it has any sense, will want to look carefully at how it conducts job interviews. If I had any commercial savvy about me I’d probably plug a training course at this point. But that would just be vulgar!

*the exception, since you ask, is s.60 which prohibits questions about health before a job offer is made