Under the Equality Act 2010, individuals are protected from unlawful discrimination in the workplace. Unlawful discrimination refers to unfair treatment because of a particular protected characteristic.
These protections apply across the employment lifecycle, from the initial recruitment and selection stage, right through their period of employment to contract termination. This means an individual who has been discriminated against while applying for a job may be able to bring a discrimination if they can show they have been treated unfairly because of a protected characteristic.
Discrimination during the recruitment process
The main types of discrimination are:
- Direct discrimination – treating someone worse because of a specific trait they have. For example, refusing to offer a man a care worker role because most service users prefer female workers.
- Indirect discrimination – implementing policies or rules that give rise to a negative impact on an individual because of one of those traits. For example, a job advertisement requiring a certain number of years’ experience, ruling out younger candidates who have the necessary skills.
- Harassment – the intentional creation of a sustained hostile environment for an individual, specifically targeting one of those traits. Examples include telling jokes about an individual’s religion, belief or gender at interview making them feel uncomfortable or humiliated.
- Victimisation – refusing to offer an internal role to someone who has previously made a complaint of discrimination against their employer.
The Equality Act not only covers discrimination relating to the individual in question; it can also relate to:
- Discrimination by association – direct or indirect discrimination against someone who has an association with a person who has a protected characteristic, such as refusing to employ a person who is a carer for a disabled person.
- Discrimination by perception – not employing someone you think has a particular religion because of their name, because you believe they will not fit in with the culture of the team
Considering candidates based on both essential and desirable criteria is acceptable within equality legislation, however, rejecting an applicant for any of the following reasons is discrimination:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion and belief
- Sexual orientation
Giving instructions to an employment or recruitment agency to discriminate is also unlawful. If they carry out such instructions, both they and the employer giving the instructions may be liable in law.
Disability and recruitment
Generally, the Equality Act 2010 makes it unlawful for employers to ask about a candidate’s health or disability when considering whether to make an offer of employment to them.
Section 60 explicitly makes it unlawful to make enquires as to health and attempts to prevent disability or health information being used to remove applicants without first giving them the opportunity to prove they have the skills for the role. However, the Equality Act allows a potential employer to ask about disability in specific, limited circumstances:
- In order to check the individual can participate in an assessment as part of the job selection process.
- If it is necessary to carry out an intrinsic part of the job. Employers should give consideration if that part of the job can be assigned to another employee or changed as a reasonable adjustment.
- If disability is a genuine occupational requirement of the job. For example, if an autism engagement worker position would need someone who is diagnosed with autism within the role.
If you do find yourself in this position, when making enquiries about someone’s health or disability, you should think about how you frame any questions. One option could be to make a job offer that is conditional upon medical checks being undertaken and passed.
Making reasonable adjustments
The Equality Act places a duty on employers to make reasonable adjustments for disabled applicants at all stages of the recruitment process. This is so that barriers faced by the disability are removed and allow the individual to work and apply for jobs in the same way as someone who is able-bodied.
Is discrimination ever allowed or justifiable?
In limited circumstances, the Equality Act 2010 permits employers to rely on an exception to the general principle of equality by allowing for a requirement to have a particular protected characteristic. Employers may be allowed to directly discrimination against an individual for a reason related to any of the protected characteristics where there is an “occupational requirement”.
The requirement must be crucial to the role and be proportionate in achieving a legitimate aim. For example, a Catholic college could refuse women admittance to the Priesthood because all Catholic priests are men, whereas an Anglican college could not refuse women, because both genders can be Anglican priests.
A further example of an occupational requirement would be where staff are being hired to work in a refuge for victims of domestic violence. Here, the employer might seek applicants of the same sex as the victims.
It may also be permissible to target recruitment towards under-represented or disadvantaged groups providing they are under-represented within the employer’s workforce. This is a form of ‘positive action‘.
Ultimately, recruitment and selection decisions should be based on who is the best candidate for the job.
If there are two candidates with the same qualifications, experience, and skills, you can then make a decision based on positive action. For example, if one applicant is older than another and you want to increase diversity within a predominately younger team, you would be able to select the older applicant.
How to avoid recruitment discrimination
Although discrimination is generally inadvertent, regardless of the intention of the employer in displaying bias or unfair treatment, anyone responsible for hiring within their organisation must proactively and consciously understand and avoid any biases that would discriminate against someone. The intention of the person does not matter.
The following can help to focus your recruitment activities and materials on the selection criteria and to help coach recruiters to avoid unconscious bias or unfair treatment.
Review person specifications
By reviewing the person specification and job description, you can ensure it is free from bias. Try to remove all unnecessary requirements that act as job filters or narrow down the job pool. A good starting point is to be objective when describing the necessary skills or experience required to do the job and take care that any language being used does not carry any loaded or gendered terms.
Outlining skills and using them as a framework to assess every application ensures all candidates will be dealt with in the same way. Arguably, it should also help you to avoid possible discrimination when drafting advertisements for job vacancies.
Review recruitment images
Use employment images and text from a wide range of backgrounds which will appeal to a broader pool of applicants. Research has identified that minority groups are more likely to respond to adverts reflecting their social identity. Also, try considering opening up to different platforms where your adverts are placed.
Set diversity targets for recruitment agencies
Ensure your recruitment agencies are aware of your organisation’s commitment to diversity and equality, and that this must extend to their service and how they meet your recruitment needs.
Remove bias within selection tests
Ensure any psychometric tests used are free from bias and any case studies do not favour any particular group.
Be aware of the ‘halo effect’ and the ‘horns effect’
The halo effect operates unconsciously and allows candidates to pass through a ‘favourable filter’. This works by the interviewer sending unconscious signals about who they are and what they think to the candidate. The horns effect operates in the opposite way, meaning previous negative experiences of an individual or group can mean applicants are viewed negatively.
Give sufficient time
People are more likely to fall back on biases if they are rushed into making a recruitment decision.
Train assessors and recruiters
Raise awareness among your recruiters of sources of discrimination such as language and unconscious bias and how it affects decision making can have a positive effect on recruitment processes.
Provide clear assessment criteria
Bias can flourish when assessment criteria is unclear. This is because people start to use intuition to make decisions. Assessment criteria should be clearly constructed and give credence to the factual evidence that needs to show the candidate has met the criteria.
Removing names, age, gender, and similar information from CV’s that could trigger bias allows interviewers to focus on the skills, experience, and knowledge of the candidates.
It is good practice to have more than one interviewer at all stages of the selection process. Interviewers should be able to challenge one another on the relevance of the information used to support their decision making.
Both positive and negative language used about different groups can identify bias. For example, certain behaviour can be described positively in male groups as “assertive and focussed on success”. Whereas these can be described negatively when attributed to women, such as “pushy and self-interested.”
Think about what essential criteria a person needs to do the job. This can include things like:
- Fluency in a particular language
- Level of education
- Experience within the role itself, or relevant skills the role will require
- Having the right to work in the UK
Depending on what the role entails, you can tailor the list accordingly. It will allow you to discount any individual who does not meet the criteria and therefore does not need to include within your shortlist.
You should also consider the role’s desirable criteria. These are factors that are not essential to the role but having them could help, such as:
- Speaking an additional language (to at least conversational standard)
- Certifications within the sector
- Additional experience
- Membership of a group or union that could give the candidate additional knowledge or skills.
Feedback for unsuccessful applicants
It is good practice to provide unsuccessful candidates, particularly after an interview stage, with feedback and the reasons why you will not be making them an offer. This creates a good impression of the organisation and promotes transparency and integrity in relation to your recruitment activity.
Providing you have exercised due diligence within your recruitment and selection processes, you will be able to show how your reasons relate to how the candidate measured up against the recruitment criteria. This may help the rejected candidate to come to terms with the result.
Overall, it is essential to remember that under the Equality Act, you must treat everyone with fairness, respect, and dignity. And in doing so, you will always be on the right path to minimise and eliminate discrimination in recruitment and selection within your business.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice on issues relating to mental health discrimination at work, speak to our experts.
Discrimination during recruitment FAQs
What is discrimination in recruitment and selection?
Discrimination is the unfair or unequal treatment of an individual because they possess a particular protected characteristic. You cannot either directly or indirectly discriminate against any applicants during recruitment and selection processes and should actively seek to avoid discrimination.
When can you discriminate in recruitment?
Employers are able to discriminate if the nature of the work means that it is an “occupational requirement” for the role to be performed by someone with a particular characteristic. For example, a support worker for domestic violence victims would fall into the occupational requirement category for recruitment purposes.
What are the main principles of discrimination law in recruitment and selection?
The Equality Act 2010 makes it unlawful for employers to discriminate against job applicants because of a “protected characteristic”: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage, or civil partnership.
Last updated: 6 March 2021