Recruitment Discrimination UK: Employer Guide 2026

Recruitment discrimination is one of the most legally sensitive stages of the employment lifecycle. Decisions taken before a contract is even signed can give rise to Employment Tribunal claims, reputational damage and regulatory scrutiny. Under the Equality Act 2010, job applicants are protected against unlawful discrimination from the earliest point of engagement with a prospective employer.

This means that advertising wording, application forms, shortlisting decisions, interview conduct and offer withdrawals must all comply with statutory equality obligations. A rejected candidate does not need to have been employed to bring a claim.

This article explains what recruitment discrimination is, how tribunals assess claims, the specific risks around disability and health enquiries, when discrimination may be lawful, and the practical steps employers should take to reduce legal exposure. It should be read alongside wider employment law compliance requirements and the core principles of employment discrimination and recruitment law.

What this article is about

This guide provides a compliance-focused overview of recruitment discrimination under UK law. It is written for employers, HR professionals and managers responsible for hiring decisions. The aim is to clarify the legal tests applied by tribunals under the Equality Act 2010 (including direct discrimination under section 13, indirect discrimination under section 19, harassment under section 26, victimisation under section 27, disability reasonable adjustments under sections 20–21, restrictions on pre-employment health enquiries under section 60, occupational requirements under Schedule 9 and positive action in recruitment under section 159) and to provide structured guidance to help organisations design defensible recruitment processes.

Where a candidate alleges discrimination, they will usually be required to notify Acas for Early Conciliation before issuing an Employment Tribunal claim. This process affects the standard time limit position (commonly described as three months less one day) because limitation is adjusted while Early Conciliation is underway.

Section A: What Is Recruitment Discrimination?

Recruitment discrimination arises where a job applicant is treated unlawfully because of a protected characteristic under the Equality Act 2010. Protection applies regardless of seniority, sector or size of employer. The statutory framework is deliberately broad and covers the entire recruitment journey, meaning risks can arise in advertising, application forms, shortlisting decisions, interview questioning, testing methods and the making or withdrawal of offers.

In practice, recruitment discrimination is often alleged where decision-making is subjective, poorly documented or inconsistent. Employers should treat recruitment as a regulated compliance process, supported by objective criteria, structured scoring and clear records, rather than a discretionary managerial activity. This is especially important because compensation in discrimination claims is uncapped and disputes can quickly become public-facing through Employment Tribunal proceedings.

1. Protected Characteristics Under the Equality Act 2010

The Equality Act 2010 protects individuals from discrimination because of the following protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

It is unlawful to discriminate against an applicant because of any of these characteristics, subject only to limited statutory exceptions. The main legal categories employers must understand are direct discrimination (section 13), indirect discrimination (section 19), harassment (section 26) and victimisation (section 27). Disability discrimination has additional rules, including the duty to make reasonable adjustments (sections 20–21) and restrictions on pre-employment health enquiries (section 60).

Recruitment discrimination can also arise where the applicant has a protected characteristic, is perceived to have one, or is associated with someone who has one. Employers should assume tribunals will look closely at whether the stated reasons for decisions were genuinely applied consistently and whether protected characteristics may have influenced outcomes.

2. When Does Legal Protection Begin?

Protection against recruitment discrimination begins at the earliest stage of candidate engagement and applies across the full recruitment and selection process, including:

• Job advertisements and role descriptions
• Application forms and eligibility filters
• Shortlisting criteria and scoring decisions
• Interviews, assessment centres and testing
• Conditional offers, onboarding checks and offer withdrawals

An employer cannot avoid liability by arguing that no employment relationship existed. The Equality Act 2010 expressly covers applicants and those seeking employment. For example, discriminatory advertisement wording may unlawfully deter certain groups from applying, shortlisting practices may result in indirect discrimination where a provision, criterion or practice places a protected group at a disadvantage, and inappropriate questioning or comments at interview can amount to harassment.

Employers should also keep in mind that broader obligations around discrimination at work can apply across the employment lifecycle, including recruitment, internal progression and dismissal. Recruitment decisions should therefore be aligned with organisation-wide equality and inclusion policies and supported by training for anyone involved in hiring decisions.

3. Liability and Tribunal Enforcement

Applicants who believe they have been discriminated against may bring a claim in the Employment Tribunal. While limitation is often summarised as three months less one day from the alleged discriminatory act, a prospective claimant will usually need to notify Acas for Early Conciliation before issuing a claim and the limitation position is adjusted while Early Conciliation is in progress.

Compensation for discrimination is uncapped. Awards can include financial loss and injury to feelings. Injury to feelings awards are assessed by reference to the Vento guidelines, which are updated periodically by Presidential Guidance. Tribunals can also make aggravated damages awards in serious cases where the employer’s conduct justifies it.

The burden of proof can shift to the employer where a claimant establishes facts from which discrimination could be inferred. This makes contemporaneous record-keeping critical. Employers should be able to evidence why each decision was made, how scoring was applied against objective criteria and that the process was consistent across candidates. Where an employer relies on a policy or practice that disadvantages a protected group, it should also be able to evidence why that provision, criterion or practice was needed, what alternatives were considered and why less discriminatory options were rejected.

Recruitment discrimination claims also carry reputational risk. Tribunal judgments are public and increasingly searchable. Even where financial exposure is limited, reputational harm can be significant, particularly where employers cannot demonstrate a structured and fair recruitment system.

Section A Summary

Recruitment discrimination under the Equality Act 2010 applies from the earliest stage of candidate engagement. Job applicants are protected throughout the recruitment and selection process, compensation is uncapped and liability can arise even where discrimination was unintended. Employers should ensure recruitment decisions are based on lawful, objective and documented criteria and that recruitment practices can be justified and evidenced if challenged.

Section B: Types of Recruitment Discrimination

Recruitment discrimination is assessed by tribunals according to defined statutory categories. Each type of discrimination has its own legal test and its own potential defences. Employers involved in recruitment must understand these distinctions, as liability often turns on how the facts are categorised under the Equality Act 2010.

During recruitment, claims most commonly arise under four headings: direct discrimination (section 13), indirect discrimination (section 19), harassment (section 26) and victimisation (section 27). Each can occur before employment begins and each carries uncapped compensation risk.

1. Direct Discrimination

Direct discrimination occurs where an applicant is treated less favourably because of a protected characteristic. The legal test asks whether the applicant has been treated less favourably than a real or hypothetical comparator and whether that treatment was because of the protected characteristic.

Direct discrimination can arise in three principal ways:

• Actual characteristic – for example, rejecting a candidate because of their race, sex or disability.
• Perceived characteristic – where an employer assumes an applicant has a protected characteristic and acts on that assumption.
• Association discrimination – where an applicant is treated less favourably because of their association with someone who has a protected characteristic.

Examples in recruitment may include refusing to shortlist a visibly pregnant candidate, rejecting an older applicant based on assumptions about adaptability, or declining to appoint someone because of customer preference linked to race or religion. Customer preference, organisational culture or informal “fit” considerations will not justify direct discrimination.

With limited exceptions, direct discrimination cannot be justified. The principal exception relates to age discrimination, which may be lawful if the employer can show the treatment was a proportionate means of achieving a legitimate aim.

2. Indirect Discrimination

Indirect discrimination arises where an employer applies a provision, criterion or practice (PCP) that appears neutral but has a disproportionate adverse impact on people sharing a protected characteristic.

The legal test requires the claimant to show that:

• A PCP was applied to all applicants;
• The PCP put people sharing a protected characteristic at a particular disadvantage;
• The claimant was placed at that disadvantage; and
• The PCP cannot be objectively justified.

Objective justification requires the employer to demonstrate both a legitimate aim and that the PCP was a proportionate means of achieving that aim. Tribunals will consider whether the employer had evidence supporting the aim, whether alternatives were considered and whether less discriminatory options were available.

Common recruitment examples include requiring a fixed number of years’ experience where this disadvantages younger applicants, imposing rigid full-time working requirements without assessing flexibility, or requiring UK-based experience where it is not genuinely necessary. Employers should be able to evidence why the requirement was necessary and how proportionality was assessed.

Cost alone will rarely be sufficient to justify indirect discrimination.

3. Harassment in Recruitment

Harassment occurs where unwanted conduct related to a protected characteristic has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

In determining whether harassment has occurred, tribunals consider the applicant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

In a recruitment context, harassment may arise through:

• Inappropriate jokes about age, race or sexual orientation;
• Intrusive questioning about gender reassignment or pregnancy plans;
• Comments about accent, appearance or background;
• Dismissive or belittling remarks linked to disability.

Even a single serious incident may amount to harassment. Interviewers should therefore receive training on appropriate questioning and conduct.

4. Victimisation

Victimisation occurs where an applicant suffers a detriment because they have carried out, or are believed to have carried out, a protected act. Protected acts include bringing discrimination proceedings, raising an equality grievance or giving evidence in support of another person’s complaint.

In recruitment, this may arise where an internal candidate is rejected because they previously raised a discrimination complaint, or where a former employee applying for re-employment is treated unfavourably due to past tribunal proceedings.

The applicant does not need to prove that their earlier complaint was upheld. It is sufficient that they carried out a protected act. Victimisation cannot be justified.

Section B Summary

Recruitment discrimination can arise through direct treatment, indirectly through workplace practices, through harassment during interactions or through retaliatory treatment amounting to victimisation. Each category carries distinct legal tests and limited defences. Employers should ensure decision-makers understand these distinctions and apply objective, consistent and documented recruitment criteria.

Section C: Disability and Recruitment

Disability discrimination in recruitment carries additional statutory obligations and is one of the most litigated areas under the Equality Act 2010. Employers must comply both with the restriction on pre-employment health enquiries under section 60 and with the duty to make reasonable adjustments under sections 20–21. Failure to comply can expose the organisation to standalone liability, even where no other form of discrimination is established.

Because disability discrimination law operates differently from other protected characteristics, employers should ensure that those involved in recruitment understand both what questions may lawfully be asked and when proactive steps must be taken to remove disadvantage.

1. Section 60: Restrictions on Pre-Employment Health Enquiries

Section 60 of the Equality Act 2010 restricts employers from asking about an applicant’s health or disability before making a job offer. The general rule is that health-related questions should not be asked at application or shortlisting stage.

There are limited statutory exceptions. Employers may ask questions where necessary to:

• Establish whether the applicant can participate in the recruitment process;
• Determine whether reasonable adjustments are required for interview or assessment;
• Establish whether the applicant can perform intrinsic functions of the role;
• Monitor diversity (provided this information is kept separate from selection decisions);
• Take lawful positive action; or
• Establish whether a particular disability is an occupational requirement.

“Intrinsic functions” means functions genuinely fundamental to the role, not tasks included merely for convenience or historic practice. Employers should be cautious when describing a function as intrinsic and should be able to justify why it is essential.

If prohibited health questions are asked and the candidate is subsequently rejected, the burden of proof may shift to the employer in tribunal proceedings. Health monitoring information should therefore be separated from decision-makers involved in shortlisting and interviews.

2. Duty to Make Reasonable Adjustments in Recruitment

The duty to make reasonable adjustments applies to applicants as well as employees. Where a disabled applicant is placed at a substantial disadvantage compared with non-disabled applicants, the employer must take reasonable steps to remove or reduce that disadvantage.

This duty arises where the employer knows, or could reasonably be expected to know, that the applicant is disabled and disadvantaged.

Examples of reasonable adjustments during recruitment include:

• Providing application materials in accessible formats;
• Allowing additional time in written assessments;
• Offering alternative interview formats;
• Adjusting testing methods or selection exercises;
• Ensuring physical accessibility of interview venues.

The assessment of what is “reasonable” takes into account factors such as cost, practicality, the employer’s resources and the effectiveness of the adjustment. However, employers are not required to remove genuinely intrinsic functions of the role. They must, though, consider whether adjustments would enable the applicant to perform those functions.

3. Failure to Make Adjustments and Justification

Failure to make reasonable adjustments is a standalone form of disability discrimination. Unlike indirect discrimination, there is no general objective justification defence available where a reasonable adjustment should have been made but was not.

Employers should therefore document:

• What disadvantage was identified;
• What adjustments were requested or considered;
• Why a proposed adjustment was accepted or rejected; and
• How proportionality and practicality were assessed.

Tribunals will often examine whether the employer engaged constructively with the applicant and whether the issue was approached in good faith. A structured, documented and evidence-based approach to reasonable adjustments significantly reduces litigation risk.

Section C Summary

Disability discrimination in recruitment involves both restrictions on pre-employment health enquiries and a proactive duty to make reasonable adjustments. Section 60 limits what employers may ask before offering employment, and failure to make reasonable adjustments cannot be justified. Employers should ensure recruitment processes are accessible, documented and compliant with statutory duties.

Section D: When Is Recruitment Discrimination Lawful?

As a general rule, treating an applicant less favourably because of a protected characteristic will be unlawful. However, the Equality Act 2010 provides limited statutory exceptions. These exceptions are interpreted narrowly by tribunals and must be applied cautiously and with evidence.

Employers should not assume that business preference, operational convenience or customer demand will justify discriminatory treatment. Lawful discrimination in recruitment is tightly defined and must satisfy specific statutory tests.

1. Occupational Requirement Exception

Under Schedule 9 of the Equality Act 2010, an employer may require a person to have a particular protected characteristic where:

• The requirement is crucial to the role;
• It is a proportionate means of achieving a legitimate aim; and
• The applicant does not meet that requirement.

This is known as the occupational requirement exception. It applies only where the protected characteristic is genuinely necessary for the performance of the role.

Examples may include recruiting only female staff in a women’s refuge where privacy and dignity considerations justify that requirement, or requiring a chaplain to adhere to a particular religion.

Tribunals interpret this exception strictly. It cannot be relied upon because customers prefer a particular demographic, because of internal team preference or because it would be administratively simpler. Employers must evidence why the requirement is genuinely necessary and proportionate.

2. Objective Justification

Objective justification is available in limited circumstances, specifically in relation to:

• Indirect discrimination; and
• Direct age discrimination.

To rely on objective justification, an employer must demonstrate both:

• A legitimate business aim; and
• That the measure adopted was proportionate and necessary.

Legitimate aims may include workforce planning, ensuring effective service delivery or maintaining health and safety standards. However, cost alone will rarely amount to a sufficient justification.

Tribunals will assess whether less discriminatory alternatives were available and whether the employer conducted a balanced assessment of impact before applying the provision, criterion or practice.

Outside the limited context of age discrimination, direct discrimination cannot normally be justified.

3. Positive Action in Recruitment

Positive action is frequently misunderstood. The Equality Act distinguishes between general positive action measures under section 158 and positive action in recruitment and promotion under section 159.

Section 158 permits proportionate steps to enable or encourage persons who share a protected characteristic to overcome disadvantage or participate in activity where they are underrepresented. This may include targeted outreach, training or mentoring initiatives.

Section 159 permits selection of a candidate with a protected characteristic in a genuine tie-break situation where:

• The candidates are as qualified as each other;
• The employer reasonably believes that people sharing the protected characteristic are disadvantaged or underrepresented;
• The action is proportionate; and
• The decision is not automatic or based on a blanket policy.

Positive action does not allow quotas and does not permit selecting a less qualified candidate. It must be evidence-based and applied on a case-by-case basis.

Employers should also distinguish lawful positive action from positive discrimination, which is generally unlawful outside limited statutory exceptions.

Section D Summary

Recruitment discrimination will only be lawful in tightly defined statutory circumstances, such as where an occupational requirement applies, where indirect discrimination or age-based treatment can be objectively justified or where lawful positive action is used in a genuine tie-break situation. These exceptions are narrow and require careful evidential support.

Section E: Preventing Recruitment Discrimination and Reducing Legal Risk

While many discrimination claims arise unintentionally, liability under the Equality Act 2010 does not depend on motive. Employers must take proactive steps to ensure recruitment processes are structured, objective and defensible. A well-designed recruitment framework is one of the strongest safeguards against claims and will also assist in demonstrating that the organisation took all reasonable steps to prevent discrimination.

Tribunals frequently examine whether an organisation had clear procedures in place, whether interviewers were trained and whether decision-making was documented. Informal processes, inconsistent scoring and subjective commentary significantly increase legal exposure.

1. Drafting Lawful Job Advertisements

The recruitment process begins with the advertisement. Wording that appears neutral may still create legal risk if it directly or indirectly discourages applicants with a protected characteristic.

Employers should:

• Avoid language that implies a preference for a particular age group, such as “young and energetic”;
• Avoid unnecessary physical requirements unless genuinely intrinsic to the role;
• Ensure that experience requirements are proportionate and necessary;
• Focus on skills, competencies and measurable criteria;
• Ensure occupational requirement exceptions are clearly justified where relied upon.

Advertisements should be reviewed to ensure alignment with broader equality policies and with established principles on discrimination at work. Careful drafting at this early stage reduces downstream risk.

2. Objective Shortlisting and Scoring Systems

Subjective decision-making is a common source of discrimination claims. Employers should define essential and desirable criteria before reviewing applications and apply those criteria consistently across all candidates.

Best practice includes:

• Using structured scoring matrices;
• Applying consistent weighting to criteria;
• Avoiding informal commentary unrelated to role requirements;
• Ensuring decision-makers do not have access to monitoring data when scoring.

Where shortlisting decisions are challenged, tribunals will scrutinise documentary evidence. Inconsistent or poorly recorded reasoning may undermine the employer’s defence and increase the likelihood of adverse inferences.

3. Structured Interview Processes and Bias Control

Interviews should follow a consistent, structured format supported by trained interviewers. Informal questioning or off-script discussions increase the risk of harassment, direct discrimination or inappropriate health enquiries.

Employers should implement:

• Pre-determined competency-based questions;
• Standardised scoring sheets;
• Clear guidance on prohibited topics, including health, age and family plans;
• Training on unconscious bias and interviewer bias.

Addressing recruitment bias is not only good practice but also assists in evidencing that the organisation took reasonable steps to prevent discrimination.

4. Managing Recruitment Agencies and Third Parties

Employers remain potentially liable for discriminatory acts carried out by recruitment agencies acting on their behalf. In addition to vicarious liability under section 109 of the Equality Act, it is unlawful to instruct, cause or induce another person to discriminate.

Risk mitigation steps include:

• Providing written non-discrimination instructions to agencies;
• Auditing agency equality and diversity practices;
• Reviewing agency shortlisting criteria for compliance;
• Avoiding informal or discriminatory selection instructions.

Delegating recruitment does not remove legal responsibility. Employers must be able to demonstrate that reasonable steps were taken to prevent discrimination by those acting on their behalf.

5. Record Keeping and Audit Trails

In discrimination claims, documentation is often decisive. Employers should retain:

• Job descriptions and advertisements;
• Shortlisting matrices and scoring sheets;
• Interview notes and panel comments;
• Communications with candidates;
• Evidence supporting any reliance on objective justification or positive action.

The absence of documentation may allow a tribunal to infer that the stated reasons for rejection were not genuine. Regular audits of recruitment outcomes can also help identify patterns suggesting indirect discrimination risk.

Section E Summary

Preventing recruitment discrimination requires structured processes, objective criteria, interviewer training and careful documentation. Employers that treat recruitment as a regulated compliance function significantly reduce legal exposure and strengthen their ability to defend tribunal claims.

FAQs

1. What is recruitment discrimination?

Recruitment discrimination occurs where a job applicant is treated unlawfully because of a protected characteristic under the Equality Act 2010. Protection applies from the earliest stage of the recruitment process, including job advertisements, shortlisting, interviews and the making or withdrawal of offers.

2. Can a rejected applicant bring a discrimination claim?

Yes. An individual does not need to be employed to bring a claim. Job applicants are protected under the Equality Act 2010 and may bring proceedings in the Employment Tribunal. Before issuing a claim, a prospective claimant will usually need to notify Acas for Early Conciliation. Limitation is commonly described as three months less one day from the discriminatory act, but the time position is adjusted while Early Conciliation is underway.

3. Is discrimination ever allowed in recruitment?

In limited circumstances, differential treatment may be lawful. This includes where there is a genuine occupational requirement under Schedule 9 of the Equality Act 2010, where indirect discrimination or direct age discrimination can be objectively justified, or where lawful positive action is applied in a genuine tie-break situation under section 159. These exceptions are narrowly interpreted and must be evidence-based.

4. Can employers ask about disability during recruitment?

Generally, employers should not ask health-related questions before making a job offer unless a statutory exception under section 60 of the Equality Act 2010 applies. Employers must also comply with their duty to make reasonable adjustments during the recruitment process. Improper health enquiries may increase litigation risk.

5. What compensation can be awarded for recruitment discrimination?

Compensation in discrimination cases is uncapped. Awards may include financial loss and injury to feelings, assessed in accordance with the Vento guidelines as updated by Presidential Guidance. In serious cases, tribunals may also award aggravated damages. Tribunal judgments are public, meaning reputational risk may extend beyond financial exposure.

Conclusion

Recruitment discrimination remains one of the most scrutinised areas of UK employment law. The Equality Act 2010 protects applicants from the earliest stage of engagement and imposes clear obligations on employers throughout the recruitment and selection process.

Employers must ensure recruitment decisions are based on objective, documented and role-relevant criteria. Particular care is required in relation to disability, restrictions on pre-employment health enquiries and the duty to make reasonable adjustments. Reliance on occupational requirements, objective justification or positive action must be supported by clear evidence and applied proportionately.

A structured, compliance-led recruitment framework supported by training, bias awareness and robust record-keeping provides the strongest defence to discrimination claims and reinforces wider organisational commitments to equality and fairness.

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