<\/p>\n
Driven by the upcoming Employment Rights Act, which grants unfair dismissal rights to new starters after July 1, 2026, businesses are expected to increase the use of creative vetting methods \u2013 like Duolingo\u2019s \u201ctaxi driver test\u201d \u2013 but this exposes them to legal risks of inadvertently causing discrimination or generating a costly perception of unfairness among candidates, says Chris Deeley<\/em><\/p>\nDuolingo CEO Luis von Ahn recently hit the news following a comment on The Burnouts Podcast<\/em> that the company had turned down an otherwise promising candidate for CFO because they had been \u201cmean\u201d to the taxi driver taking them from the airport to their interview. The rationale, von Ahn explained, was that \u201cif they\u2019re going to be mean to the driver, they\u2019re probably going to be mean to other people, particularly people under them.\u201d With the Employment Rights Act set to quickly grant unfair dismissal rights to new starters joining after 1 July 2026, it is likely that businesses will explore all options, even the very creative ones, to ensure their recruitment process is effective.<\/p>\nUsing unorthodox criteria or hidden tests to separate otherwise neck-and-neck candidates is nothing new \u2013 the \u2018receptionist test\u2019 of secretly watching how an executive candidate treats more junior staff has been around for decades. It\u2019s the same energy that fuels The Undercover Boss,<\/em> and far too many posts on LinkedIn. But while it is no doubt attractive to believe that there is a secret \u2018trick\u2019 to weeding out troublesome candidates (or, on the flipside, to getting hired), might there be danger in relying too heavily on this sort of gimmick?<\/p>\nFrom a legal perspective, the risk \u2013 as is so often the case \u2013 is of inadvertently introducing discrimination into the hiring process. While businesses do largely have the leeway to select the candidates they want, giving everyone a fair shot is imperative and bringing in these more \u2018maverick\u2019 elements to an interview process could leave cracks for unlawful biases to seep in. Using von Ahn\u2019s taxi test, an autistic candidate, for example, might prefer not to make small talk during their ride and instead use the time to decompress ahead of their interview. Might that be perceived as \u2018ruder\u2019 than a chatty neurotypical candidate? The issue is less about a particular protected characteristic, although one can see how disability, pregnancy and race\/nationality (especially in the form of accents) could present obvious stumbling blocks depending on the \u2018test\u2019; instead the bigger risk arises from deploying unvetted criteria, which may also bear little relation to the day-to-day reality of the role being hired for (thus undermining any legal defence of pursuing a legitimate business aim).<\/p>\n
Perception of unlawful treatment<\/h2>\n As any employment lawyer can tell you, often avoiding litigation does not just require eliminating unlawful treatment, but also eradicating any space where a perception<\/em> of unlawful treatment \u2013 even if misplaced \u2013 could take hold. That is another danger of the hidden interview test. If you know that you are a very well-qualified candidate for a role, and you are told that part of the reason that someone else was preferred to you was (to borrow another oft-referenced \u201ctest\u201d) that you did not offer to wash up your coffee cup after the meeting, would you believe it? Perhaps not, particularly if you have already gone in feeling self-conscious about a visible disability, a strong accent or being female in a male-dominated industry. Sometimes that impression of unfairness is all that it takes to kick a dispute into gear, and it can be very difficult to dispel that sort of impression once it has taken root.<\/p>\n