A former US Navy communications systems technician-turned-coaching business owner was apparently told the statement, italicised and underlined below, by a recruiter.
And there’s been a hoo-ha online concerning the statement’s legality, writes Roger Sinclair of Egos, a legal advisory for women in tech.
The curious case of the biz owner, the recruiter, and the phone-screener
It’s a statement that might be uttered in the direction of women in tech, as the recruiter apparently said it during a “phone-screener” – a sort of telephone assessment to see if an applicant is as suitable for a role as their LinkedIn profile or written job application indicates.
The recruiter’s statement, causing the legal hoo-ha, is:
“The hours for this role are such-and-such. Do you have anything that would keep you from working those hours, like kids or other commitments?“
Is the recruiter’s statement illegal?
The former US Navy technician, now running her own coaching business, Katheryn Bermann, who was on the receiving end of the statement, alleged that it was unlawful, posting in capitals “THIS IS ILLEGAL.”
Jurisdiction is first port of call when you suspect agencies of unlawfulness
Well, the first question to ask is, ‘Where?’
And when I looked at the poster’s profile, I saw that she was in Wisconsin, USA. The laws of each jurisdiction are different, and I can pass no comment on those of Wisconsin, USA.
Would it be illegal to utter the statement — and such a question to women in tech — in England & Wales?
Employment Agencies v Employment Businesses; what’s the difference?
Well, in England & Wales, the Conduct (Employment Agencies and Employment Businesses) Regulations 2003 apply to recruiters.
As a reminder, the rough and ready difference between the two is that:
- ‘Employment Agencies’ seek to place individuals in positions where the individuals will be paid by the hirer, whereas
- ‘Employment Businesses’ seek to place individuals who will be paid via the Employment Business.
Employment ‘agencies’ offer different jobs to employment ‘businesses’
Hence, ‘Employment Agencies’ are generally associated with permanent positions, and ‘Employment Businesses’ with contract / temporary roles.
In the above phone-screening scenario, I’ll assume that this is a call about a contract role, and that the recruiter (Employment Business) has already complied with the requirements of the regulations to agree terms of business, before providing any ‘work-finding services’.
GDPR requirements: What does a GDPR notice need to detail?
I’ll assume, also, that the recruiter has been ‘GDPR-compliant’ by already having provided a General Data Protection Regulation Privacy Notice, detailing:
- the personal data that may be collected;
- how that personal data may be collected;
- how that personal data will be used, and the lawful basis for processing.
For this article for Women In Tech.co.uk, I will further assume that the recruiter has made the various other disclosures required by the GDPR.
A recruitment agency specifying the role’s hours? Nothing to see here
Then, we must turn to the next part of the recruiter’s statement:
“The hours for this role are such-and-such.”
It is a simple statement of fact. No problem.
A pushy question our job applicant doesn’t deserve to be asked…
This is followed by the recruiter with:
“Do you have anything that would keep you from working those hours?”
That seems to me to be somewhat pushy and manipulative. The recruiter’s question might better have been put as “Could those hours work for you?”
Crass to quiz (tech) job candidates about kids and commitments
However, it’s the next part of the statement, “like kids or other commitments?” that, to me, seems both dumb and utterly crass.
Yet, so far as I can see, it would not be illegal in England & Wales to ask the question.
Whether it would be wise for a recruiter in England and Wales to ask this question is a completely different matter!
Not wise, but seemingly not unlawful conduct by the recruiter
Because, if the question is answered, with an obliging response, say, “Two kids but they won’t be a problem,” the words have then been said, and cannot be unsaid.
The information has been communicated — and not even the sophisticated kit that Bergmann no doubt once worked with can ‘uncommunicate’ the information!
Risks of responding to recruiter’s ‘kids’ query (continued)
And if you gave this response but were unsuccessful in your job application, only later to find out that the disclosed characteristic (“Two kids”) had not been shared by whoever the successful candidate was, the ground might have been laid by the recruiter for you to attempt a discrimination claim.
I am not saying here that such a claim would necessarily succeed.
The expensive business of proving a negative
But it could end up very expensive for the end-hirer, who might then have to try and prove the negative of showing that the knowledge of the “Two kids” had not been influential in the engager’s decision.
And all because the end-hirer’s recruiter asked a dumb question!
Final thought – muffle out any discordant sounds
It won’t take a military-grade comms specialist to work out that the communication here by the recruiter should have been given much more care and consideration than it received, assuming good relations with candidates, and no legal bother from end-hirers, are the targets.
Roger Sinclair
Roger Sinclair has operated as an independent legal consultant since 1994, nowadays specialising in ‘atypical employment’ - generally for contractors, umbrellas, agencies, and consultancies. Prior to this, he spent 18 years in practice as a solicitor.
