Giving interview feedback should all be part and parcel of the recruitment process for businesses. However, many firms are reluctant to do so for fear of a claim being brought against them. Cleggs has helped advise many businesses on employment law for employers and employees. Here are some top tips on the ins and outs of how to handle interview feedback when communicating with unsuccessful candidates.

Discrimination claim

An unsuccessful applicant for a position of employment can bring a discrimination claim if they have a protected characteristic – for example age, disability, marriage, pregnancy and maternity to name a few – and feel that this was the reason that they did not get the job. A feedback response could prove to be a critical document in an employment tribunal claim for such a claim and so feedback should always be capable of being supported objectively before a tribunal.

It is good practice to offer feedback

The Equality and Human Rights Commission (EHRC) code recommends that having secured a preferred candidate, it would be good practice for employers to offer feedback to unsuccessful shortlisted candidates, if this is requested. It states that feedback can be written or oral and should be provided in a sensitive manner, with any negative comments or criticisms relating directly to the applicant’s failure to meet the requirements of the role or the person specification.

Failure to give feedback can give rise to a claim

Many employers do shy away from giving feedback to candidates purely because they are fearful that it could result in a claim being brought against them. But employers should also know that failure to give feedback following a request by an unsuccessful applicant can give rise to an inference that the reason for rejection is a discriminatory one. This could result in a shift of the burden of proof in a subsequent discrimination claim brought by the unsuccessful applicant. So it is in businesses’ best interests for managers to ensure that they respond to requests for feedback promptly and in accordance with any relevant policy. Feedback is a vital part of the recruitment process for both candidate and employer.

Burden of proof

European case law has held that prospective employers are not under a positive obligation to disclose information about the recruitment process to rejected candidates. However, an employer’s refusal to grant access to information may be one of the factors for a tribunal to take into account when deciding whether there are facts from which discrimination could be inferred and which therefore would place the burden of proof onto the employer to disprove discrimination.

Top tips for giving interview feedback

• Keep it short and simple.
• Never comment on or express personal feelings on personal aspects of the candidate.
• Don’t shy away from giving feedback to candidates, it can be equally as harmful as no interview feedback.
• Make sure you respond promptly to any feedback request.

If you need any help around tribunals, please contact Cleggs to discuss your circumstances in more detail.