Discrimination – when the recruitment process isn’t fair

A survey conducted by CV library in 2017 found that 1 in 4 (22%) of UK professionals have experienced discrimination during an interview, the majority of these (39.9%) felt that it was because of their age.

It’s clear that despite preventative measures being put into place such as the Equality Act 2010, discrimination, even at the interview process, still rears its big ugly head and remains to be an issue in the UK.

So, who better to shed some light on discrimination in the workplace than award winning Employment Solicitor, Jennifer Smith, whose skills and expertise span over ten years in employment law, seven of those as a Partner at JMW Solicitors LLP.

What is discrimination in the workplace?

Discrimination can broadly be described as treating people in certain groups (described in the legislation as those with “protected characteristics”) differently, because they are a member of that group, or for reasons which are connected with characteristics which are associated with that group.

Protected characteristics are that of age, sex, sexual orientation, disability, race (including colour, nationality, ethnic or national origin), religion or belief, gender reassignment, marriage and civil partnership and, last but certainly not least, pregnancy and maternity leave.

Discrimination can come in one of the following forms:

  • Direct discrimination – treating someone with a ‘protected characteristic’ less favourably than others.
  • Indirect discrimination – is concerned with acts, decisions or policies (broadly speaking) that apply to everyone and which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic.
  • Harassment – unwanted behaviour linked to a ‘protected characteristic’ that violates someone’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.
  • Victimisation – treating someone unfairly because they have complained (or might complain) about a protected act, such as making a discrimination claim, complaining about harassment, or becoming involved in another employee’s discrimination complaint. Victimisation is usually alleged to have been committed by an employer, that is already the subject of a discrimination complaint by a current or former employee, but this need not always be the case.
  • Instructing, causing, inducing and helping discrimination – The EqA 2010 also expressly makes it unlawful to instruct, cause, induce or help someone to discriminate against, harass or victimise another person, or to attempt to do so.

Before the EqA 2010 came into force, discrimination law in Great Britain was contained in a number of different pieces of legislation. The EqA 2010 brings together over 116 separate pieces of legislation into one single Act. The Act simplifies, strengthens and harmonises the existing legislation.

So, where can discrimination occur in the workplace?

Discrimination can occur at any point from the get go i.e. when an individual is going through the recruitment process, even all the way up after the employment relationship has ended. People are often surprised to hear that job applicants are protected against discrimination by their potential employer.

Sections 39 and 40 of the EqA 2010 set out the circumstances in which an employer will be discriminating unlawfully against a job applicant or employee. These provisions are similar to those found in the previous discrimination legislation, meaning that old case law remains relevant.

People are often surprised to hear that job applicants are protected against discrimination by their potential employer.

Which area do you think discrimination in the workplace is most rife?

Sex and disability discrimination are still the areas that seem to land on my desk the most.

If, for example, a company requires a worker for a job where physical strength is a prerequisite, and so in turn only wants to receive applications from fit, strong people, to what extent can they filter out applications from those that don’t meet that criteria without breaching the Equality Act?

It really depends on why the employee needs to have physical strength. According to the disability lobby, there is still considerable discrimination against disabled people in recruitment and people are often put off even applying for jobs because of pre-employment health questions. Section 60 of the Equality Act 2010 makes it generally unlawful to ask questions about disability and health. Its purpose is to prevent disability or health information being used to sift out job applicants, without first giving them the opportunity to show they have the skills to do the job.

Section 60 of the Equality Act 2010 makes it generally unlawful to ask questions about disability and health.

If having physical strength is an intrinsic function of the job, then a company is unlikely to be in breach of Section 60, however, they need to be exceptionally careful how they word this in the job advert and I would advise against using the current wording. The criterion “physical strength” is too broad to relate to any specific requirement of the job and could potentially amount to discrimination.

Consider the following example: when recruiting scaffolders, if a construction company asks applicants whether they have a disability or health condition that affects their ability to climb ladders, as the ability to climb ladders is an intrinsic function of the job, the construction company will not in breach of Section 60.

Section 60 allows questions about health and disability to be asked before job applicants are offered the job only when the law says they are necessary and fall within these narrow exceptions:

  1. To find out if a job applicant can take part in any assessment to test their ability to do the job or to find out if reasonable adjustments are needed to enable a disabled job applicant to take part in any assessment.
  2. To find out whether a job applicant will be able to carry out an intrinsic part of the job. If this part of a job can be changed or assigned to another person then this may count as a reasonable adjustment for a disabled job applicant.
  3. To find out whether a job applicant has a particular disability where having that disability is an occupational requirement of the job.
  4. To monitor the diversity of people applying for the job.
  5. To take positive action in relation to disabled people – for example, to decide if job applicants qualify for measures the employer takes to improve disabled people’s employment rates.
  6. Where another legal requirement means an employer has to ask health or disability related questions. For example, Merchant Shipping Regulations prohibit the employment of seafarers unless they have

Including criteria in a job application that relates to health, physical fitness or disability, such as asking applicants to demonstrate a good sickness record, may amount to indirect discrimination – particularly against disabled people. Therefore, any criteria set out by an employer must be objectively justified by the requirement of the actual job in question.

How can discrimination in the workplace be prevented?

I think people need to be made more aware of the Equality Act. In the UK we have strict anti-discrimination laws and for employers it’s vitally important to get it right first time. Employees should also all be given equality and diversity training to ensure that they know how to avoid unintentional discrimination in the workplace.

Employees should also all be given equality and diversity training.

Employers should draw up a comprehensive anti-discrimination workplace policy, ensuring that it’s clear, concise and easily understood by employees. They may wish to consider including:

  • A statement that says they prohibit discrimination and harassment in the organisation.
  • Clear definitions of what is classed as discrimination and harassment. Include examples where appropriate.
  • State that behaviour outside the office applies anywhere that the employee is acting on the employer’s behalf, i.e. external meetings or work events or parties.
  • The complaints and reporting mechanisms for staff. The policy should encourage employees to speak out about bullying and harassment in the workplace without fear of reprisals. Ensure employee confidentiality and/or allow them to report anonymously.
  • Explain what would happen if claims are brought against anyone if they are found to have harassed or bullied any member of staff.

Some small businesses have admitted that, because of their size, they would purposefully not hire women of a child bearing age because they could not afford to lose the resource if that employee went on maternity leave. Do you think gender bias is quite common when small businesses recruit?

Sadly, gender bias is still extremely common, in businesses of all sizes. We hear of many cases where employers will avoid hiring women or even promoting women, who may be planning families.

There are still employers who dismiss women when they discover they are pregnant as they do not want to deal with maternity leave requirements. Managing maternity leave is a challenge for all employers of all sizes, but the prospect of a key team member being away for up to a year, can be a particular concern for small businesses.

We hear a lot about pay inequality between men and women. And, although the Equal Pay Act was put in place to put a stop to this, how common do you think unequal pay is in today’s workplace?

Unfortunately, unequal pay is still rife within the workplace – the recent revelations at the BBC are just one example.

Unfortunately, unequal pay is still rife within the workplace.

What measures can an employer put in place to improve this imbalance?

Employers should think carefully, not just about paying men and women the same rate for the same job, but also about whether different jobs could be said to require similar levels of skill.

For example, if one job role dominated by men requires a similar level of knowledge and skill to another job that is mainly done by women, the female workers could be entitled to equal pay on the grounds of equal value.

To address the imbalance, employers should consider putting in place pay grade systems for these types of jobs.

When you’re interviewing candidates, are there any questions you can’t ask them?

Interviewers should avoid asking questions about the ‘protected characteristics’ listed above. If the candidate volunteers information about their sexual orientation, disability etc. then the interviewer must make sure that it does not sway their decision on whether to hire, as to do so would be discriminatory.

By way of example, an employer has previously been ordered to pay £4,000 to a candidate who was questioned about whether she had children, and subsequently told she would probably not get the job because she did.

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If the candidate volunteers information about their sexual orientation, disability etc. then the interviewer must make sure that it does not sway their decision on whether to hire, as to do so would be discriminatory.

Originally published 28th August 2018