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The Equality Act

The Equality Act 2010 makes it unlawful for employers to discriminate against job applicants because of a protected characteristic. There are nine protected characteristics; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Failing to offer a job applicant a position because of a protected characteristic amounts to direct discrimination. Appling a criteria and certain conditions to job requirements and the recruitment process can amount to indirect discrimination against job applicants.

Key points to note: 

  • There is a duty to make reasonable adjustments to the recruitment process for job applicants with a disability.
  • It is generally unlawful to ask a job applicant questions about their health or disability before making a job offer.
  • It is permissible to target recruitment towards under-represented or disadvantaged groups. This is known as ‘positive action’.
  • Discrimination can arise in several areas of recruitment and selection, for example in the arrangements it makes for deciding who to offer a role too,the terms on which it offers a someone a post (such as pay or benefits) or by not offering someone employment.
  • It is possible to discriminate against an applicant during the recruitment process because of a perception that they have a particular protected characteristic – even if that perception is inaccurate.
  • Employers cannot take into account the fact that a job candidate is pregnant and therefore likely to be absent on maternity leave after being appointed, when making recruitment decisions.
  • Unsuccessful candidates can bring a discrimination claim in the Employment Tribunal if they believe that they experienced discrimination in the recruitment process. They have three months to do so from the act of discrimination.
  • In the event of a claim – any notes from the process will be critical. Without records, it will be extremely difficult for the employer to convince a tribunal that the recruitment exercise was carried out fairly and without discrimination. It isn’t a defence in the Employment Tribunal to say that any discrimination was done unintentionally.

Examples of indirect discrimination in recruitment and selection:

  • Advertising a role that states applicants must satisfy certain unjustifiable conditions where some applicants with a particular protected characteristic will have difficulty satisfying them. For example, stating a degree is essential when you don’t really need one to do the role successfully.
  • Asking questions at interview focusing on areas that aren’t relevant to the job and indicate bias – for example asking questions about childcare arrangements.
  • Not making reasonable adjustments for candidates with disabilities. Reasonable adjustments Where a candidate has a disability the recruiting manager will need to consider ifany adjustments need to be made to the recruitment and selection process.

Examples of the types of adjustments that could be made include:

  • Altering the venue for the interview if the disabled job applicant to ensure they have access.
  • Providing more time to complete tests.
  • Allowing a candidate with learning difficulties to be accompanied at the interview
  • Uundertaking the interview at a certain time of day.