While it is not the purpose of this text to be a reference book on employment law, I have included this chapter to make you aware of the legislative aspect of recruitment. Employers have to ensure they comply with the varying pieces of law and regulations or suffer not only punitive fines but also immeasurable damage to their reputation as an employer. Discrimination claims of all types are heard in the employment tribunals in Scotland, England and Wales. Employers may also be liable to make compensatory awards to those whom they have wronged. If you have a basic awareness of what an employer can and cannot do in the interview situation, then you are more likely to know whether or not you have the right to seek remedy at tribunal.

At the end of the chapter, I will briefly discuss employment tribunals should you decide to make a claim if you believe you have been unlawfully discriminated against when you have applied for a job and failed to be appointed. Note: This legislation applies in the United Kingdom only.

LEGISLATION AFFECTING RECRUITMENT

Employers have a legal responsibility to ensure no unlawful discrimination occurs in the recruitment and selection process on the grounds of sex, race, disability, age, sexual orientation and religion or belief. The following acts set out the legal requirements and areas they cannot discriminate in and are further discussed below:

• Rehabilitation of Offenders Act 1974
• Sexual Discrimination Act 1975
• Race Relations Act 1976
• Trade Union and Labour Relations (Consolidation) Act 1992
• Disability Discrimination Act 1995
• Asylum and Immigration Act 1996
• Police Act 1997
• Data Protection Act 1998
• Employment Equality Regulations 2003.

REHABILITATION OF OFFENDERS ACT 1974

This act deals with spent criminal convictions.

SEX DISCRIMINATION ACT 1975

This Act is concerned with discrimination on the grounds of sex. gender reassignment or marital status, either directly or indirectly, and covers a broad range of workers including contract workers and applies regardless of length of service in employment or the numbers of hours worked. It allows you to take a case to an employment tribunal. If your case is successful, you will receive compensation for any financial loss you have suffered; an award for injury to feelings can also be made.

The types of unlawful discrimination under the Sex Discrimination Act are:

• Direct sex discrimination is less favourable treatment of a woman than a man (or vice versa) because of her sex, for example refusing to consider women for a mechanic’s job because of her sex, or for refusing to consider a man for a nursery nurse’s job.
• Direct marriage discrimination is less favourable treatment of a married person compared to a single person of the same sex, for example having a policy of not employing married women.

• Indirect sex discrimination occurs when an employer applies a provision, criterion or practice equally to both women and men but which puts or would put women at a particular disadvantage when compared to men (or vice versa) and which the employer cannot show to be a proportionate means of achieving a legitimate aim. An example of this might be where an employer applies a provision that all job applicants must have been previously employed by the Armed Forces; as women have not traditionally worked in the Armed Forces in the same numbers as men, fewer women than men would be eligible to apply and so women would be put at a disadvantage.
• Indirect marriage discrimination occurs when an employer applies a provision, criterion or practice equally to both married women and single women (or married men and single men) but which puts or would put married persons at a particular disadvantage when compared to single persons of the same sex and which the employer cannot show to be a proportionate means of achieving a legitimate aim. An example of this might be a provision that applicants for promotion must be prepared to relocate to a different part of the country. As fewer married women than single women are mobile (and also, arguably, fewer married men than single men), this may be unlawful indirect marriage discrimination, unless the employer could show that mobility was a valid and necessary function of the job and was thus a proportionate means of achieving a legitimate aim.

Be aware however, that in certain limited circumstances it is lawful to discriminate in recruitment, training, promotion and transfer in a job for which the sex of the worker is a genuine occupational qualification (GOQ). The SDA allows an employer to restrict applications for a vacancy to women (or men) if the essential nature of the job, or particular duties attached to the job, calls for a woman (or a man).

GOQs can only be claimed in relation to:

• physiology (excluding physical strength and stamina) – for example, a female model for women’s clothes;
• privacy and decency – for example, a male care assistant whose job involves helping men dress or use the toilet;
• certain work in private homes – for example, a live-in carer;
• single-sex accommodation – for example, working on board a submarine;
• single-sex establishments – can only be claimed when the jobholder has to live in the premises provided, which are normally occupied by persons of one sex and there is no separate sleeping accommodation for persons of the opposite sex;
• personal welfare or educational services – for example, a female counsellor in a rape crisis centre;
• jobs outside the UK in a country whose laws or customs are such that the job can only effectively be done by a man;
• the employment of married couples – for example, residential posts of female warden and male caretaker.

An employer cannot claim that a GOQ applies if there are enough other members of staff of the appropriate sex to cover the duties in question. For example, it would be unlawful for an employer to restrict a vacancy in a clothes shop to women on the grounds that part of the duties involved assisting in the changing room if there were enough women sales assistants already employed to cover that aspect of the job.

But how can I find out if I was rejected for a post because of my sex?

In order to successfully make a claim of direct sex discrimination, you have to show that you would have been appointed if not for your sex. You can do this by showing that you were better qualified and experienced than the successful candidate. You may know little about the employer and his recruitment practices; you may not know anything about the successful candidate. In these circumstances, it is important to use the Sex Discrimination Questionnaire (SD74) which can be obtained from the Equal Opportunities Commission’s website at www.eoc.org.uk. The form gives you the opportunity to ask the employer particular questions which will help you find out more information. You can ask the employer questions about the successful candidate, including details of their sex, skills, qualifications and experience. You can also ask for details of the recruitment process, including how many men and how many women applied, the sex of all those interviewed, their qualifications and experience. This information should help you find out whether you have sufficient grounds for proceeding with a sex discrimination claim. For example, suppose you were not shortlisted, but you find out that all of the shortlisted candidates were better qualified than you and that both men and women were shortlisted – this would tell you that there would be little point in pursuing a case of sex discrimination.

RACE RELATIONS ACT 1976

The employer is prevented from treating an individual in a less favourable way because of their race or ethnic background.

This can be via direct discrimination which is where an employer discriminates directly against a certain group or individual because of their sex, race, disability, age, sexual orientation or religion or belief. For example, an employer may not want to employ women within the work place or individuals from a certain race. However, the law does not take into account that the employer may have chosen to discriminate against someone for their own protection – for example, the decision not to employ a black person may have been to protect the individual from racist comments.

Alternatively it can come from indirect discrimination which is where an employer discriminates against a group or individual without perhaps realising they have done so.

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

This Act applies to discrimination on the basis of whether or not an applicant is a trade union member.

DISABILITY DISCRIMINATION ACT 1995

The DDA places obligations on employers not to discriminate against disabled people either indirectly or directly. It also places an additional duty on employers to make ‘reasonable adjustments’ to accommodate a disabled person’s needs should they be suitable for a position and would have been selected were it not for their disability.

Direct discrimination

Determination of whether there has been discrimination under the DDA usually involves comparing – asking ‘how would the employer’s treatment of me have been different if I was somebody else?’ The ‘somebody else’ is known as a comparator. It can be a real person or a hypothetical person. The comparator can be a person without a disability, or a person not having the same disability as the disabled person making the claim (that is, you). You will see how this might work below.

Direct discrimination happens when an employer’s treatment of the disabled person is because of that person’s disability and the employer treats the disabled person less well than they would treat a comparator – that is, a non-disabled person or a person not having that particular disability (you will hear this called ‘less favourable treatment’) AND the relevant circumstances – and abilities – of the comparator are pretty much the same (in ways that count) as those of the disabled person. This part of the DDA became law in October 2004. However, employment tribunals have not decided many cases about this kind of comparing as we have gone to press.

Failure to make reasonable adjustments

This happens when an employer (or potential employer) has failed to make adjustments which are reasonable to accommodate the person’s disability to the physical working environment (for example, things such as doorways, toilets, office furniture, etc.) where this failure places a disabled person at a substantial disadvantage and/or the employer’s criteria or practices (for example, their selection and interview procedures, the terms on which employment is offered and conditions of service) place the disabled person at a substantial disadvantage and/or where the employer has failed to make an adjustment which they had already accepted was reasonable and where the employer knew or could reasonably be expected to know that the person concerned had a disability.

If the employer does not make reasonable adjustments then you may have a claim that unlawful discrimination has happened. If you can show that the employer has failed to make an adjustment, the employer cannot defend this failure. Examples of reasonable adjustments are given below.

You would need to:

• identify whether it is a physical feature of the building where you work which puts you at a substantial disadvantage;
• identify whether it is a ‘provision, criterion or practice’ which places you at a disadvantage;
• identify what the substantial disadvantage is and how it affects you;
• have made the employer aware that you are a disabled person and that you require appropriate reasonable adjustments.

The duty to make reasonable adjustments is owed specifically to the individual disabled person (that is, you). It does not matter that a non-disabled person (or a person not having your particular disability) would not have been put at a substantial disadvantage because of the employer’s ‘provisions, criteria or practices’ or by a physical feature of the premises. What counts is that you (the disabled person) are at a disadvantage.

What is reasonable?

If the adjustment you require is a reasonable one then the employer must make it. However, an employer may say that the adjustment you require is not ‘reasonable’ in the circumstances. For example because:

• the cost of the adjustment is too great;
• the adjustment is not practical;
• the adjustment would cause too much disruption;
• the adjustment would not have the desired effect.

It would be for an employment tribunal to decide whether the employer’s reasons adequately explain why the adjustment was not reasonable and was not made.

Examples of reasonable adjustments

Reasonable adjustments that an employer (or potential employer) should consider making include:

• allocating some of the disabled person’s duties to another person;
• altering the disabled person’s working hours or training;
• transferring the disabled person to a different place of work or training;
• giving or arranging for training or mentoring;
• allowing the person to be absent during working or training hours for rehabilitation, assessment or treatment;
• acquiring or modifying equipment (for example, providing voice-activated computer software for an employee with a visual impairment);
• modifying or adjusting disciplinary and grievance procedures;
• adjusting redundancy selection criteria;
• altering physical features of the building/office layout.

Disability-related discrimination

Disability-related discrimination happens when an employer’s treatment of the disabled person is for a reason related to their disability and is less favourable than the way in which others, to whom that disability-related reason does not apply, are or would be treated and which the employer is unable to justify and/or when the employer has failed to make a reasonable adjustment, which would have made a difference to the reason the employer has given justifying its less favourable treatment.

To work out if disability-related discrimination has happened to you, you need to identify whether a disability-related reason is a factor in the treatment you are receiving and identify in what way the treatment that you are receiving is less favourable compared to others to whom the disability-related reason does not apply, and consider whether the explanation for the treatment, if any, put forward by the employer could justify the discrimination. This means that you would have to look at whether there is a strong link between the explanation given for your treatment and your circumstances. You would also have to consider whether the explanation carried real weight. You would also need to consider whether the employer had failed to make a reasonable adjustment and, if so, whether, had an adjustment been made, it would have made a difference to the explanation that the employer used to justify the less favourable treatment.

ASYLUM AND IMMIGRATION ACT 1996

The Asylum and Immigration Act makes it a criminal offence for an employer to employ those who do not have permission to work in the UK. Be aware, then, that the employer is likely to ask you to provide one of the following:

• 1.A passport showing that the applicant is a British citizen or has the right to abode in the UK.
• 2.A document showing that the applicant is a national of a European Economic Area country or Switzerland. This must be a national passport or national identity card.
• 3.A residence permit issued by the Home Office which has an endorsement stating that the applicant has a current right to residence in the UK as the family member of a national from a European Economic Area country or Switzerland.
• 4.A passport or other travel document endorsed to show that the applicant can stay indefinitely in the UK or has no time limit on his or her stay.
• 5.A passport or other travel document endorsed to show that the applicant can stay in the UK and that this endorsement allows the applicant to do the type of work the employer is offering if he or she does not have a work permit.
• 6.An Application Registration Card issued by the Home Office to an asylum seeker stating that the applicant is permitted to take employment.

Alternatively, the applicant can provide two of the following original documents:

First combination:

• A document giving the person’s permanent National Insurance Number and name. This could be a P45, P60, National Insurance Card or a letter from a government agency. Along with checking and copying a document giving the person’s National Insurance Number, the employers must also check and copy only one of the following documents:
• A full birth certificate issued in the UK, which includes the names of the applicant’s parents; OR
• A birth certificate issued in the Channel Islands, the Isle of Man or Ireland; OR
• A certificate of registration or naturalisation stating that the applicant is a British citizen; OR
• A letter issued by the Home Office which indicates that the person named in it can stay indefinitely in the UK or has no time limit on his or her stay; OR
• An Immigration Status Document issued by the Home Office with an endorsement indicating that the person named in it can stay indefinitely in the UK or has no time limit on his or her stay; OR
• A letter issued by the Home Office which indicates that the person named in it can stay in the UK and this allows him or her to do the type of work the employer is offering; OR
• An Immigration Status Document issued by the Home Office with an endorsement indicating that the person named in it can stay in the UK and this allows him or her to do the type of work that is being offered.

Second combination:

• A work permit or other approval to take employment that has been issued by Work Permits UK. Along with a document issued by Work Permits UK, the employer should also see, check and copy one of the following documents:
• A passport or other travel document endorsed to show that the holder is able to stay in the UK and can take the work permit employment in question; OR
• A letter issued by the Home Office confirming that the person named in it is able to stay in the UK and can take the work permit employment in question.

POLICE ACT 1997

The Police Act provides a statutory basis for certain criminal record checks which may be used by employers. These checks can be made via the Criminal Records Bureau which came into being in 2001. Organisations who work with vulnerable children or adults tend to utilise this service.

EMPLOYMENT EQUALITY REGULATIONS 2003

These regulations relate to sexual orientation, religion or belief and age.

Equality of opportunity should be an integral part of the recruitment and selection process. Employers may be required to offer training and assistance to under-represented groups. For example:

• pre-application assistance to applicants without English as their first language.;
• adverts to include a statement encouraging applications from under-represented groups.

DATA PROTECTION ACT 1998

Recruitment involves the gathering of personal information on candidates. Recruiting managers must therefore ensure that they comply with the requirements of the Data Protection Act in the way they obtain and handle this information.

THE EMPLOYMENT TRIBUNAL

A tribunal is less formal than a magistrate’s court or county court but, like a court, it has procedures and rules. There is a panel of three members. The chairman is a lawyer. One of the other two members is from an employer panel, the other from an employee panel.

When you take a discrimination claim it is up to you to convince the tribunal that you have been discriminated against. The person you say discriminated against you will defend the claim and try to persuade the tribunal that you have not been discriminated against. Throughout the process you are known as the claimant and your opponent as the respondent. Together you are known as the parties to a claim.

You can bring claims against individual employees who you believe have discriminated against you as well as the employer. It is important to name individual employees as respondents as well as the employer if there is any possibility that the employer might be able to persuade the tribunal that it took reasonable steps to prevent the discrimination you are complaining about.

To help you decide whether or not to take a claim to the tribunal, it is worth considering what you hope to achieve and whether this is something the tribunal can order if your claim succeeds. A tribunal can:

• make a decision on whether or not the law has been broken;
• award compensation for your financial loss because of the treatment.;
• award compensation for injury to feelings suffered as a result of the treatment;
• award compensation for injury to health suffered as a result of the treatment;
• in certain circumstances order exemplary damages to punish the respondent;
• award interest on compensation.

Like all legal environments, there are certain burdens of proof before a claim can be successful and a number of decisions regarding the shift in the burden of proof in discrimination cases have been heard in the Court of Appeal. The court states that, when considering discrimination cases, a tribunal has to conduct a two-stage exercise.

First the claimant has to prove discrimination (i.e. facts from which the tribunal could conclude that, in the absence of an adequate explanation, the respondent has committed an unlawful act of discrimination); then the respondent had to prove they did not commit the unlawful act.

The decision makes it clear that to succeed in relation to the first stage of the test, a claimant must prove on the balance of probabilities facts which, in the absence of an adequate explanation, would be discrimination.

In assessing the first stage, the court states that it is important to bear in mind that it is unusual to find direct evidence of discrimination. It is also important to consider what inferences could be drawn from the facts. For example, inferences could be drawn from an evasive or equivocal reply to a race relations or sex discrimination questionnaire, or a failure to comply with a relevant code of practice.

Once a claimant had passed this first stage of the test, the tribunal should then go on to consider the second stage.

This stage, i.e. once the burden of proof has shifted to the respondent, involves the respondent proving on the balance of probabilities that the treatment was in no way whatsoever on the ground of sex or race or disability. Therefore it is not enough for the respondent to provide an explanation for the facts; they must show that sex, race or disability were not grounds for the treatment in question.

As you can see, the law is very complex in this area and I would urge you at this point to consider taking professional advice should you feel that the prospective employer has treated you in a way which contravenes any of the Acts mentioned above.