Employers: preventing discrimination

What discrimination is

It is against the law to treat someone less favourably than someone else because of a personal characteristic, eg religion or age. There are different kinds of discrimination.

It can include, for example:

• not hiring someone
• selecting a particular person for redundancy
• paying someone less than another worker without good reason

Discrimination does not have to be deliberate and intentional. You can discriminate indirectly with working conditions or rules that disadvantage one group of people more than another.

Recruitment

Job adverts

You mustn’t state or imply in a job advert that you’ll discriminate against anyone. This includes saying that you aren’t able to cater for workers with a disability.

Only use phrases like ‘recent graduate’ or ‘highly experienced’ when these are actual requirements of the job. This could discriminate against younger or older people who might not have had the opportunity to get certain qualifications.

Where you advertise might cause indirect discrimination - for example, advertising only in men’s magazines.

When you can discriminate

You can specify that the successful applicant will be from a particular group if it’s a requirement of the job. For example, people under 18 cannot legally sell alcohol.

Get help with advertising a job

Questions you can’t ask when recruiting

You must not ask candidates about protected characteristics and:

• their health
• if they’re married, single or in a civil partnership
• if they have children or plan to have children

You can ask about health or disability if:

• there are necessary requirements of the job that can’t be met with reasonable adjustments
• you’re finding out if someone needs help to take part in a selection test or interview
• you’re using ‘positive action’ to recruit a disabled person

Date of birth

You shouldn’t ask someone for their date of birth on an application form. People selecting candidates for interview or interviewing shouldn’t be influenced by someone’s age.

You can include a question on date of birth as part of an equality monitoring form if you use one.

Criminal convictions

Applicants don’t have to tell you about criminal convictions if they’re spent. You must treat the applicant as if the conviction has not happened, and cannot refuse to employ the person because of their conviction.

There are some areas of employment that are exempt from this rule, eg schools.

Trade union membership

You must not use membership of a trade union as a factor in deciding whether to employ someone. This includes:

• not employing someone because they’re a member of a trade union
• insisting someone joins a trade union before you’ll employ them

Employing people with protected characteristics

You can choose a job candidate who has a protected characteristic over one who doesn’t if they’re as suitable for the job and you think that people with that characteristic:

• are underrepresented in the workforce, profession or industry
• suffer a disadvantage connected to that characteristic (eg people from a certain ethnic group are not often given jobs in your sector)

You can only do this if you’re trying to address the under-representation or disadvantage for that particular person. You must make decisions on a case by case basis and not because of a certain policy.

You can’t choose a candidate who isn’t as suitable for the job just because they have a protected characteristic.

Disabled people

When recruiting you can treat a disabled person more favourably than a non-disabled person because of their disability.

Discrimination during employment

You must not discriminate against your employees. This could be done by, for example:

• introducing measures that discriminate between workers, eg a benefit for married employees that’s not available for people in a civil partnership
• selecting someone for redundancy because they have a protected characteristic
• failing to make reasonable adjustments for a disabled worker
• firing someone for making an allegation of discrimination
• firing someone because they’re a union member
• unfairly rejecting a request for flexible working from a new parent

Training and promotion can’t just happen because of an employee’s age or the time they’ve worked for you.

You are allowed to ask employees about their future career plans, including retirement. However, you shouldn’t just choose older workers for discussions about retirement. Such talks should be part of general discussions about each worker’s career development.

Employment tribunals

An employee who thinks they’ve been discriminated against may raise a grievance or take their case to an employment tribunal.

Employing family members

If you hire members of your family you must:

• avoid special treatment in terms of pay, promotion and working conditions
• make sure tax and national insurance contributions are done correctly

Gender reassignment

The moment an employee tells their employer that they are going to have gender reassignment, they are protected from discrimination. This includes:

• disadvantaging the worker because of the time they may have to take off because of medical treatment
• enabling the worker to use facilities appropriate to their gender
• once the worker has a Gender Reassignment Certificate and a new birth certificate, you must amend your records, eg human resources records, to reflect this
• insuring complete confidentiality of all information the worker gives you regarding their gender history

Equal pay

Women and men are entitled to be paid equal amounts for work of equal value - including benefits, eg company car.

Employees can make a request for you to provide ‘key information’ as part of a claim that they’re not being paid what they should be.

You don’t have to respond to this request but it will be taken into account if there’s an employment tribunal.