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Updating author: Lynda Macdonald
On this page:
Summary
Future
developments
Practical example
Key references
Making the selection
The danger of making
assumptions
The implications of
rejecting a suitable candidate
Using social
media
Discrimination at
selection
The
implications of rejecting a candidate on grounds of pregnancy
The
implications of rejecting a candidate on grounds of age
The
implications of rejecting a candidate on grounds of disability
Questions about health or
disability
The duty to
make reasonable adjustments
Positive
discrimination
Positive action in
recruitment and promotion
The
implications of rejecting a candidate on grounds of trade union
membership
Blacklisting
The implications of the Bribery
Act 2010
Pensions
auto-enrolment and prohibited recruitment conduct
Keeping records
Data protection implications
Summary
Once all the interviews are complete, the employer will have to
make a firm decision on whom to recruit and whom to reject. All the
information gleaned about all the candidates on the shortlist should be examined
carefully in order to make the selection.
- The core provisions of the Equality Act 2010, which applies to England,
Wales and Scotland (but not to Northern Ireland), came into force on 1 October
2010.
- The Equality Act 2010 largely consolidates and replaces previous
anti-discrimination legislation, ie the Equal Pay Act 1970, the Sex
Discrimination Act 1975, the Race Relations Act 1976, the Disability
Discrimination Act 1995, the Employment Equality (Sexual Orientation)
Regulations 2003 (SI 2003/1661), the Employment Equality (Religion or Belief)
Regulations 2003 (SI 2003/1660) and the Employment Equality (Age) Regulations
2006 (SI 2006/1031).
- The Equality Act 2010 makes it unlawful for employers to discriminate
against job applicants (and existing workers) because of a "protected
characteristic". The protected characteristics are: age, disability,
gender reassignment, marriage and civil partnership, pregnancy and maternity,
race, religion or belief, sex and sexual orientation.
- In evaluating job applicants on a rating scale, it is important to apply
points according to the degree of match between candidate and employee
specification, rather than giving high ratings to those with the best
qualifications or longest experience. (See Making the selection)
- In making the final selection for employment, the main aim should be
objectivity, and personal opinions, attitudes and prejudices must not be
allowed to influence the choice. (See The danger of making assumptions)
- It will be discriminatory and unlawful to reject a job applicant for
employment because of sex, gender reassignment, marriage or civil partnership
status, pregnancy, race, religion, sexual orientation, disability (unless
rejection for employment because of a reason arising from disability can be
justified), age (unless justified), or trade union membership. (See The implications of
rejecting a suitable candidate)
- Employers should take care not to discriminate unlawfully if using social
media to assess the suitability of potential recruits. (See Using social media)
- A complaint of discrimination can succeed at tribunal even if there is no
absolute proof of discrimination, because tribunals work to the "balance of
probabilities" test rather than requiring proof beyond reasonable
doubt. (See Discrimination at
selection)
- Once a job applicant (or employee) has established facts from which a
court or tribunal could conclude that discrimination occurred, the court or
tribunal must uphold the complaint unless the employer can show that there is
an alternative credible explanation for its treatment of the job applicant
that has nothing to do with a protected characteristic. (See Discrimination at selection)
- If a job applicant is pregnant and she is refused employment for reasons
related to her pregnancy, the decision not to recruit her will be
discriminatory and unlawful. (See The
implications of rejecting a candidate on grounds of pregnancy)
- It is unlawful to reject a job applicant for employment on the grounds of
his or her age, unless this can be objectively justified. (See The
implications of rejecting a candidate on grounds of age)
- If a disabled applicant who is suitable for the job in terms of
qualifications, skills and experience is rejected for employment for a reason
"arising in consequence of" a disability, this will amount to disability
discrimination and will be unlawful unless the rejection can be justified as a
proportionate means of achieving a legitimate aim. (See The
implications of rejecting a candidate on grounds of disability)
- Subject to limited exceptions, it is potentially discriminatory on the
ground of disability to ask a job applicant questions about his or her health
or disability before making a job offer to that person. (See Questions about health or
disability)
- Employers are under a duty to consider whether there are any reasonable
adjustments to working practices or premises that they could make to remove or
reduce any substantial disadvantage that a disabled person would otherwise
face if he or she were employed. (See The duty to make reasonable
adjustments)
- Employers can take specified positive action in connection with
recruitment and promotion but only in limited defined circumstances.
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