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Legal Updates

Discrimination during recruitment

02 September 2021 #Employment


There were 835,000 job vacancies recorded by the Office of National Statistics between May and July 2021 and, this is good news as it shows the economy is recovering from the pandemic. However, organisations must review their recruitment procedures to ensure they are compliant with anti-discrimination laws.

The Equality Act 2010 offers protections to job applicants, who have protected characteristics, when applying for jobs this includes protection from direct/indirect discrimination, failure to offer reasonable adjustments, harassment, and victimisation.

There are nine protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation). We will cover the protections offered under the Equality Act 2010 and how they could apply during the recruitment process.

Direct discrimination

Direct discrimination is where an employer treats a potential candidate less favourably because of a protected characteristic. Direct discrimination requires a comparator, which can be hypothetical. The job applicant must show they have suffered a detriment as a result of less favourable treatment.

An example could be refusing to offer a job because they are due to have cancer surgery soon and the employer doesn’t want to take a chance on whether this would be successful, and this would be direct disability discrimination.

Indirect discrimination

Indirect discrimination is where the employer has a practice, criteria, or provision (PCP) that, places people with a protected characteristic at a disadvantage. Employers will have a defence against indirect discrimination if they can show they had a legitimate reason for their PCP. This is known as a  ‘legitimate aim..  

The burden of proving a legitimate aim is on the employer and it must be consistent with a genuine business requirement. The tribunal will need to determine whether the discriminatory treatment is justifiable, and the tribunal will carry out a balancing exercise between the business requirement and the discrimination.

An example of indirect discrimination is advertising a role as being full time, the PCP would be full time and it could put parents or carers at a disadvantage.

Harassment

The Equality Act 2010 has three definitions of harassment and two are specific to sex and sexual nature related harassment. The broader definition of harassment is where a prospective employer engages in unwanted conduct, related to a protected characteristic, which has the purpose or effect of violating a prospective employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

This could happen during the interview process; a manager could question a person on their ethnic background and make derogatory remarks on their experience with people of the same culture.

Victimisation

  • The Equality Act 2010 has a protected act that includes: Bringing proceedings under the Equality Act 2010
  • Giving evidence or information in connection with proceedings under the Equality Act 2010
  • Doing any other thing for the purposes of or in connection with the Equality Act 2010
  • Alleging that the employer has, or another person has contravened the Equality Act 2010.

Victimisation occurs where a job applicant is wronged by a prospective employer by doing a protected act.

Using the example above, victimisation could be when the prospective employee complains to the hiring manager about the interviewer’s racist conduct and the applicant is not offered the position as they complained about the interviewer’s racist conduct. 

Failure to make reasonable adjustments

There is a duty to make reasonable adjustments for people who are disabled, as defined by S.6 of the Equality Act 2010. There are three requirements under this duty that the employer must take reasonable steps to avoid the disadvantage:

  • Where employers have a PCP in place that places people with disabilities at a substantial disadvantage
  • Where the employer has a physical feature that places people with disabilities at a substantial disadvantage.
  • To provide an auxiliary aid, which applies where people with disabilities are at a substantial disadvantage but wouldn’t be with the provision of auxiliary aid. Employers must take reasonable steps to provide an auxiliary aid. Employers will have a defence to this if they did not know and could not be expected to know of the disability.

Physical features and the provision of an auxiliary aid will be very fact-specific. However, in general, the case law on failing to offer reasonable adjustments during recruitment tends to focus on the employer’s failure to offer reasonable adjustments to people with learning disabilities or Asperger’s when requiring them to undergo psychometric tests.

Discrimination arising from disability

This anti-discrimination law is specific for disabled persons. and is where the potential employer treats a job applicant less favourably because of something arising in consequence with their disability. An employer will have a defence to this if they can show their discriminatory actions were in pursuit of achieving a legitimate aim.

This could happen when an employer imposes a strict interview date and time, and the employee is unable to attend as they are attending hospital for dialysis requirements. The employer is not discriminating because of the medical illness necessitating dialysis and therefore not direct discrimination but rather because the employee is unable to attend because of something arising in consequence of the disability.

If you have any questions about discrimination during recruitment, our Employment team are happy to assist.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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Sebastian Reyes

Sebastian Reyes
Solicitor

E: sreyes@clarkslegal.com
T: 0118 960 4656
M: 07818 435 521

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Employment team
+44 (0)118 958 5321