During the recruitment process, legislation prohibiting discrimination must be complied with to avoid legal claims. Additionally, taking equal opportunities seriously should also help to ensure that good candidates are not rejected because of prejudice.
Sex and race discrimination
The legislation relating to sex and race discrimination uses largely the same wording although there are some differences.
Sex Discrimination Act 1975 (SDA) - The SDA covers not only discrimination on the grounds of sex but also on the grounds of gender reassignment and marital status.
Race Relations Act 1976 (RRA) - The RRA covers colour, race, nationality and ethnic or national origins.
Both Acts outlaw both direct and indirect discrimination.
Direct discrimination is where a person of a particular race or gender is treated less favourably than the employer treats or would treat a person of another race or the opposite gender. Significantly, in terms of recruitment, it is unlawful to discriminate in recruitment arrangements, the terms on which employment is offered or by refusing or deliberately omitting to offer employment, detailed in employment law.
Sex - indirect sex discrimination occurs when a provision, criterion or practice is applied which is to the detriment of a considerably larger proportion of women than of men (or vice versa), cannot be objectively justified, and is to the complainant's detriment.
Race - indirect discrimination occurs when:
a requirement or condition is applied, and;
- the proportion of the complainant's racial group who can comply with it is considerably smaller than the proportion of people not of that group who can comply, and;
- it is not objectively justifiable, and;
- it is to the complainant's detriment that he or she cannot comply.
Points to consider:
Think about the requirements that you set out in your person specifications and adverts. Do you really need, for example, a certain qualification or type of experience? You need to be careful even where you specify an attribute as 'desirable' as this will be a 'practice' under the SDA.
Discrimination on the grounds of gender reassignment is covered by the SDA. Gender reassignment is 'a process which is undertaken under medical supervision for the purpose of reassigning a person's sex, by changing physiological or other characteristics of sex, and includes any part of such a process'. Discrimination occurs when a person undergoing gender reassignment is treated less favourably than the employer treats, or would treat, another person who is not undergoing this process. Indirect discrimination is not covered.
Legislation on discrimination on the grounds of disability is set out in the Disability Discrimination Act 1995 (DDA). Someone is considered to have a disability for the purpose of the Act if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
The definition of disability discrimination is different from that of applying to sex and race. It is defined as where an employer treats a person less favourably for a reason related to his or her disability than he would treat others to whom the reason does not apply, and the treatment is not justified. There is also discrimination if there is an unjustified failure to consider reasonable adjustments as required by section 6 of the Act.
As for sex and race discrimination, the Act specifies that it is unlawful to discriminate in recruitment arrangements, the terms on which employment is offered or by refusing or deliberately omitting to offer employment.
Points to consider:
HR practitioners should be aware of the following areas:
- In drawing up person specifications and job adverts make sure you do not ask for attributes/qualifications which are not necessary and may therefore amount to unlawful discrimination against a disabled person
- If you ask about disability on your application form, make it clear that this is for the purposes of considering reasonable adjustments
- Make sure that you do act on any information given, in making arrangements for interview and other aspects of the selection process
- If a medical assessment indicates that an individual may have a condition that could be classified as a disability under the Act, ensure that reasonable adjustments have been considered, before coming to a decision about whether or not to appoint the individual.
It is important to draw a distinction between positive action and positive discrimination. Positive action is where action is taken to assist members of a particular group to gain employment e.g. by providing training. However, positive discrimination is where members of a particular group are given preference over others for no other reason than their belonging to that group. Both the RRA and the SDA do not permit positive discrimination. However, under both Acts if at any time in the previous 12 months there were no persons of a particular gender or racial group doing particular work within an establishment's workforce, it is lawful to provide access to training or to encourage and help members of the under-represented group to undertake such work.
Discrimination in favour of disabled people is allowed by the DDA but the requirement to make appointments on merit in certain organisations means that some employers cannot discriminate in this way.
So far this section has concentrated on doing the minimum to avoid discrimination claims. In recent years there has been a shift from a traditional equal opportunities approach to one of promoting diversity. The essential difference is that while equal opportunities concentrates on removing barriers in order to allow certain under-represented groups access to posts, promoting diversity in the workplace recognises the positive aspects of individual differences of all people and the beneficial effects that this can have on an organisation. Many organisations consider it important that the workforce reflects the community as a whole so that it can provide better services.
Monitoring the characteristics of those who apply for jobs can help check that any imbalance in the workforce is because members of certain groups do not apply for jobs in sufficient numbers, or because for one reason or another, they are not successful in the recruitment process. Action can then be taken to address any problem; for example, if under-represented groups are not applying for jobs the organisation could look at where it advertises the jobs, or the wording of the adverts. Organisations generally monitor by gender, race and disability and sometimes also by marital status and sexual orientation.
The reasons for collecting this type of information should always be explained to the candidate. Completed monitoring forms should be treated as confidential and candidates should not be asked to identify themselves by name on the form.
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