1. Introduction to the Law
“While nothing in the Act prevents an employer from hiring the best person for the job, it is unlawful for an employer to discriminate in any of the arrangements made to fill a vacancy, in the terms of employment that are offered or in any decision to refuse someone a job.”
- Source: EHRC Equality Act 2010 – Statutory Code of Practice for Employment
For ease of use, the guidance is disseminated into elements of the process which impact equality and diversity matters. In order to comply with the ‘Equality Act (2010) Employment Provisions’ there are also examples of how tasks relates to equality groups/protected characteristics:
Utilising this guidance also helps a School/Unit to comply with:
- the ‘University Equality and Diversity Inclusion Policy’ in relation to recruitment
- our legal duty to Eliminate discrimination and Advance equality of opportunity under the Public Sector Equality Duty.
Human Rights in Recruitment
The University embraces the advancement for an inclusive workplace as defined by the EHRC guidance "What does an inclusive workplace look like?”. Human rights principles of fairness, respect, equality, dignity and autonomy are promoted across the University. The following are examples of an inclusive workplace:
- There is a welcoming workplace culture where everyone is treated with respect and dignity and everyone feels valued.
- Policies are in place concerning equality and human rights, working conditions, dignity at work, employee welfare and fair recruitment and procurement practices.
- Members of staff at all levels are aware of the inclusive values of the organisation and are actively consulted and involved in policy development.
- The workforce is representative of the local community or customers (or if not, under-represented groups are encouraged to apply).
- All employees are encouraged to develop and progress, and any barriers faced by specific groups are identified and action taken to address them.
- Unnecessary hierarchies and occupational segregation, where groups of employees are congregated into certain areas, are discouraged.
- The School/Unit is aware of any potential tensions within the workplace, and takes action to anticipate and address them.
- Inclusive strategies are fully supported and promoted by senior staff.
Types of discrimination relating to Recruitment & Selection
1. Direct Discrimination =
An applicant is treated less favourably than others or would be treated than others because of their ‘protected characteristic’. If an applicant is treated ‘less favourably’, a comparison is checked with how other applicants have been or would have treated similar circumstances.
|Example: At a job interview, an applicant mentions she has a same sex partner. Although she is the most qualified candidate, the School/Unit decides not to offer her the job. This decision treats her less favourably than the successful candidate, who is a heterosexual woman.|
Example: Discrimination arising from disability = a failure to make a reasonable adjustment - unless the School/Unit can objectively justify:
The School/Unit tells a visually impaired applicant who uses an assistance dog, that they are unsuitable for a job because dogs are not allowed in the office. The refusal to consider the visually impaired person for the job is unfavourable treatment which is because of something connected to their disability (their use of an assistance dog).
2. Discrimination by Association =
An applicant is treated less favourably because of their association with another person who has a ‘protected characteristic’.
|Example: The School/Unit does not give someone the job, even though they are the best-qualified person, just because the applicant tells the School/Unit that they have a disabled partner.|
3. Discrimination by Perception =
An applicant is treated less favourably because the School/Unit mistakenly thinks that the applicant has a ‘protected characteristic’.
|Example: If an internal job applicant has been unsuccessful due to disclosing that they have a caring responsibility for a disabled child, parent or partner, regardless of whether or not the job applicant is disabled.|
4. Indirect Discrimination =
a) The School/Unit applies (or would apply) the provision, criterion or practice equally to everyone within the relevant group including a particular worker.
b) The provision, criterion or practice puts, or would put, people who share the workers ‘protected characteristic’ at a particular disadvantage when compared with people who do not have that characteristic.
c) The provision, criterion or practice puts, or would put, the worker at that disadvantage.
d) The School/Unit cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Example: A job involves travelling to lots of different places to see clients. The School/Unit states that, to get the job, the successful applicant has to be able to drive.
This may stop some disabled people applying if they cannot drive. But there may be other perfectly good ways of getting from one appointment to another, which disabled people who cannot themselves drive could use. Unless objectively justified, this may result in discriminating against applicants who cannot drive because of their disability.
5. Victimisation =
The School/Unit subjects an applicant to a detriment because the applicant has done a 'protected act' or because the School/Unit believes that the applicant has done or may do a ‘protected act’ in the future.
|Example: An internal applicant is not shortlisted for an interview, even though they are well-qualified for the job, because last year the applicant said they thought the School/Unit had discriminated against them in not shortlisting them for another internal job.|
6. Harassment =
When a person engages in unwanted conduct which is related to a relevant ‘protected characteristic’ and which has the purpose or the effect of violating the worker’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for the applicant.
|Example: The panel makes an applicant feel humiliated by telling jokes about their religion or belief during the interview (and visa-versa).|
7. Hatred =
The ‘Human Rights Act – Article 14’ provides protection for people from hatred in and out of employment. Applicants and staff involved in selecting staff, have the right to protection from abusive, insulting, threatening words or behaviour.
|Example: A selection panel experience racism, homophobia or sectarianism from an unsuccessful applicant. Such an experience could result in a criminal offence under ‘hate crime’.|