Unlawful recruitment practices
Updating author: Lynda Macdonald
- Employers are prohibited from making statements or asking questions during the recruitment process that indicate that recruitment will be dependent on whether or not a job candidate opts out of pensions auto-enrolment. (See Pensions auto-enrolment and prohibited recruitment conduct)
- Job applicants have the right not to be refused employment on account of their union membership or non-membership. (See Trade union membership)
- It is unlawful to blacklist workers from employment because of their current or past trade union membership or activities. (See Blacklisting)
There are no future developments.
This section of the Employment law manual covers the legal provisions, other than the discrimination legislation in the Equality Act 2010, that have an impact on the lawfulness of recruitment and selection decisions and practices. The legal issues around unlawful discrimination under the 2010 Act and recruitment and selection are explained in Recruitment and selection > Discrimination in recruitment and selection. There are also legal provisions relating to language requirements for public-sector workers that impact on recruitment selection. These provisions are covered in Recruitment and selection > Employing foreign nationals > Public-sector language requirements.
Pensions auto-enrolment and prohibited recruitment conduct
Employers are required to enrol eligible workers automatically into a qualifying workplace pension scheme or the National Employment Savings Trust (Nest). Workers are able to opt out of auto-enrolment within a specified timescale. The Pensions Act 2008 is the initial primary legislation effecting auto-enrolment. See Pensions > Pensions auto-enrolment for more details of the auto-enrolment requirements.
The Pensions Act 2008 introduced a number of employee safeguards in relation to pensions auto-enrolment. Under s.50 of the Act, employers are prohibited from operating certain recruitment practices in relation to auto-enrolment. A recruiting employer cannot ask questions or make statements during the course of the recruitment process that indicate that the recruitment of an applicant will be dependent on whether or not he or she may opt out of membership of a workplace pension. The provisions specifically prohibit recruiting employers from making such statements or asking such questions when: inviting applications; requesting information from applicants, referees or other relevant persons; providing information about employment; and proposing terms and conditions of employment. As a consequence, employers should not include information in job advertisements or application forms or ask questions on application forms, during job interviews or when requesting references, that indicate that applicants' potential recruitment is dependent on whether or not they will opt out of pensions auto-enrolment. Nor should employers make job offers conditional on the successful applicant agreeing to opt out of workplace pension membership.
Offending employers may be subject to a fine not exceeding £50,000 for each offence under s.50 of the Pensions Act 2008, which may not be met from the funds of the pension scheme.
The Pensions Regulator has published guidance on prohibited recruitment conduct and other employee safeguards: Guidance 8: Safeguarding individuals.
Additional resources on pensions auto-enrolment and prohibited recruitment conduct
Trade union membership
Under s.137(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, it is unlawful for an employer to refuse employment on the grounds that the job applicant:
- is, or is not, a member of a trade union;
- is unwilling to accept a requirement to join or leave a particular trade union; or
- is unwilling to make payments, or suffer deductions from pay, for union dues.
Thus the fact that a particular job applicant is, or has been, a trade union member must be disregarded when making a selection decision. Further, in Jet2.com Ltd v Denby  IRLR 417 EAT, the Employment Appeal Tribunal (EAT) held that protection against discrimination because of trade union membership extends to involvement in trade union activities that are incidental to membership. The claimant, an airline pilot, was refused re-employment on the ground that, when previously employed by the airline, he had advocated and promoted the role that the trade union BALPA should be allowed to play in collective bargaining on behalf of pilots. The EAT held that refusing employment for this reason was a breach of s.137(1)(a) of TULR(C)A (refusal of employment for being, or not being, a member of a trade union).
Under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493), it is unlawful to blacklist workers from employment as a result of their current or past trade union membership or activities. The compilation, use, sale or supply of blacklists containing details of people who are, or have been, trade union members or who are taking part, or have taken part, in trade union activities is prohibited where the blacklist may be used by employers to discriminate in relation to recruitment (or in relation to the treatment of existing workers). The Government has published Guidance on blacklisting, which provides guidance on the application of the Regulations.
Trade Union and Labour Relations (Consolidation) Act 1992
Pensions Act 2008
Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493)