To avoid allegations of unlawful discrimination in recruitment, employers should not select candidates for any reason other than their qualifications and experience, unless certain limited exceptions apply.
In this guide, we explain the discrimination rules for anyone responsible for recruiting, interviewing and selecting job candidates, including advice on preventing discrimination claims and when discrimination may be justified when recruiting.
Discrimination during the recruitment process
Individuals are protected against unlawful discrimination at work under the 2010 Equality Act. Unlawful discrimination is defined as unequal treatment based on a protected characteristic. These protections apply throughout the employment lifecycle, from recruitment and selection, through to contract termination. This means that an individual who has been discriminated against while looking for a job may be able to bring a discrimination claim if they can demonstrate they have been treated unfairly due to a protected characteristic.
While it is good practice to evaluate applicants against both essential and desirable criteria, rejecting an applicant for any of the following protected characteristics, as defined under the Equality Act, could constitute discrimination:
- Age
- Disability
- Gender/sex
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion and belief
- Sexual orientation
There are four types of discrimination recognised by law, which employers will need to be aware of during the recruitment process.
Direct discrimination is when someone is treated less favourably as a result of a specific protected characteristic that they have, are perceived to have or if someone they are associated with has. For example, if an employer hires a male job applicant over a female candidate because of her sex.
Indirect discrimination relates to rules or policies which have a detrimental effect on an individual due to protected characteristics. For instance, if a job advertisement states a requirement for a minimum number of years’ service, depending on the circumstances, it may constitute unlwaful age discrimination against younger workers.
Harassment is where an individual is subjected to conduct and behaviour that makes them feel intimidated or offended. As an example in the recruitment process, making a joke about a candidate’s religion or sexual orientation could be deemed harassment.
Finally, victimisation is where someone is subject to unfair treatment because they have, or are believed to have, asserted their rights by making a discrimination complaint. In recruitment, this could be if an internal candidate is not selected because they have raised a discrimination grievance.
It’s also important to note that instructing an employment or recruitment agency to discriminate during a recruitment process is also unlawful. If they carry out such instructions, both they and the employer giving the instructions may be liable.
Disability and recruitment
Under the Equality Acct 2010, employers are not permitted to ask applicants about their health or disabilities during the recruitment and selection process.
Section 60 of the Act makes it unlawful for disability or health information to be used to reject candidates before they have been given the opportunity to prove they have the required skills. However, the Equality Act allows an employer to ask about disability in specific, limited circumstances. This includes checking the applicant can take part in the job selection assessment process; if the requirement is necessary to carry out a fundamental part of the job, in which case employers should consider reassigning that part of the job or making reasonable adjustments; and if a disability is a genuine occupational requirement of the job.
If you opt to make 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.
The duty on employers to make reasonable adjustments also applies during the recruitment process. This means making changes where reasonable for disabled applicants to be able to access the opportunity in the same way as others who do not have a disability.
Is discrimination ever allowed or justifiable?
A key aspect of recruitment discrimination is determining the requirements for the role being recruited, which includes consideration of skills, experience and in some cases, characteristics. 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.
In practice, this means employers may be allowed to discriminate 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 women’s refuge for domestic abuse survivors may look to only hire women.
In the event of a complaint, tribunals will consider whether the employer could have achieved its aim through other, non-discriminatory solutions. It is your duty to make reasonable adjustments even with objective justification.
If discrimination can be justified, it will not count as unlawful discrimination under the Equality Act.
Note that the duty to make reasonable adjustments is not impacted by the objective justification defence; even if a decision has been made to pursue a discriminatory policy that can be objectively justified, the employer must still make any reasonable adjustments.
Recruitment may also be targeted towards groups that are under-represented or disadvantaged within the employer’s workforce, which is known as ‘positive action‘. For example, if there are two candidates who meet the skills and qualifications requirements equally, and one is much older than the other, it may be possible to hire the younger worker as positive action to improve diversity if the employer’s workforce largely comprises older workers.
How to avoid recruitment discrimination
Although most instances of discrimination are unintentional, anybody responsible for recruiting within their organisation must proactively and consciously identify and eliminate any biases that would discriminate against someone. Intention is irrelevant, it is the act of discrimination and the resulting unfair treatment of somebody that is unlawful.
The following tips can assist you in directing your recruitment activities and materials toward the selection criteria and in coaching recruiters to avoid unconscious prejudice or unjust treatment.
Review recruitment policies, procedures & documentation
Check that all recruitment related materials and processes are up to date and consistent with discrimination laws. This may involve removing or editing wording within person specifications, reviewing selection testing methods to remove bias, or providing interview training to managers so they are aware of the questions that can, and cannot, be asked. Blind recruitment, for example, has become widespread to reduce recruitment bias and discrimination.
Keep focused on skills and experience
The recruitment process should be centred on assessing applicants’ skills, capabilities and experience. Vague selection criteria can also result in unconscious bias, for example if individuals make choices based on intuition rather than objective and non-discriminatory crieria. Assessment criteria should be well-defined and provide the factual information required to demonstrate a candidate’s abilities and suitability.
Tackle unconscious bias
Taking a proactive approach to unconscious bias can be extremely beneficial in improving diversity, inclusion and equality. In the recruitment process in particular, interviewer bias may be impacting candidate selection through unintended preferences or prejudices towards certain people based on shared associations , such as age, gender, sexuality, disability, ethnicity, body size. Training anyone with recruitment responsibilities can be effective to raise awareness of these unconscious associations or assumptions and how to overcome these in practice.
Audit your recruitment agent
If you use recruitment agents, you should understand their position on diversity and equality, and how their practices reduce discrimination risks and promote equality to best meet your recruitment needs.
Feedback for unsuccessful applicants
It is acceptable to provide rejected candidates with feedback and the reasons for your decision not to make them an offer, particularly following an interview stage. This enhances the organisation’s image and fosters transparency and integrity in your recruitment efforts.
If you have followed best practices throughout the recruitment and selection processes, you should be able to demonstrate how your reasons relate to the candidate’s performance against the recruitment criteria. This can act as valuable and constructive feedback for the unsuccessful candidate to take into consideration for other recruitment opportunitites.
Need assistance?
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, speak to our experts.
Discrimination during recruitment FAQs
What is discrimination in recruitment and selection?
Discrimination in recruitment and selection is where an applicant is treated unfairly because of a particular protected characteristic.
When can you discriminate in recruitment?
Employers may be able to justify discrimination if the nature of the work means the discrimination is an “occupational requirement” and the role must be performed by someone with a particular characteristic.
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.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
