Discrimination in Hiring: How to Spot and Combat it

Discrimination in hiring is a significant issue that can affect individuals seeking employment based on certain protected characteristics. Below, we define what constitutes discrimination in the UK, outline how it may manifest during the hiring process, and discuss strategies for addressing it.

If you have any questions or believe you have experienced discrimination at work, get in touch with us now. Redmans Solicitors have years of experience, enabling us to answer your queries and advise on your possible next steps.

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Recognising Discrimination in the UK

Before focusing on discrimination in hiring, it’s important to get a broader understanding of the term. The Equality Act 2010 (EA 2010) defines discrimination as less favourable treatment directed at another because of specific characteristics protected by law. These are identified as protected characteristics and encompass:

  1. Age
  2. Disability
  3. Gender Reassignment
  4. Marriage and Civil Partnership
  5. Pregnancy and Maternity
  6. Race
  7. Religion or Belief
  8. Sex
  9. Sexual Orientation

Discriminatory conduct is typically divided into four broad categories. These account for the different types of less favourable treatment an individual may endure and are as follows:

  • Direct Discrimination: This occurs when someone faces treatment that is less favourable directly because of a protected characteristic they hold or are perceived to hold.
  • Indirect Discrimination: This happens when a policy, practice, or rule applies to everyone but disadvantages those with a particular protected characteristic.
  • Harassment: This concerns unwanted conduct related to a protected characteristic that violates a person’s dignity or produces an intimidating, hostile, degrading, humiliating, or offensive environment for them.
  • Victimisation: This occurs when someone is treated unfairly because they have made a complaint about discrimination, supported someone else’s complaint, or raised a grievance under the EA 2010.

Employee rights under the Equality Act 2010

In addition to defining discrimination in the UK, the EA 2010 affords individuals protection against it. This encompasses all stages of employment, including recruitment, terms and conditions, promotions, transfers, training, and dismissals. Beyond the fundamental protections against the four categories of discrimination, the EA 2010 guarantees essential employee rights.

Among them is equal pay, requiring employers to provide male and female employees equal pay for equal work. Another critical right is the provision of reasonable adjustments for those who are disabled. This ensures the playing field is levelled for such individuals, enabling them to carry out their work without disadvantage.

Discrimination in Hiring

While the EA 2010 protects the workforce from discrimination, it also protects those during the application process. Discrimination in hiring can manifest in several ways, sometimes making it challenging for candidates with protected characteristics to secure employment.

Firstly, such conduct could arise as soon as an employer begins advertising a job. Here, the employer may use discriminatory language that indirectly excludes certain groups of people. For example, specifying a preference for a “young and dynamic team” might discourage older candidates from applying.

Asking about details irrelevant to a specific job, such as one’s age or health, could also prove disadvantageous for the applicant. The same could be said if they are judged based on their physical features or name. This time, unconscious bias may influence the employer’s decision, unfairly halting the individual’s progress in the application process.

Then, there are the questions and decisions that could be made during any interviews or job offers. Discrimination in hiring could arise if an employer asks a woman about her plans for starting a family or retracts her offer upon learning she is pregnant. Similarly, it would be unlawful if an employer questioned a disabled candidate’s ability to perform a job without considering reasonable adjustments.

In any case, employers must ensure that all stages of the hiring process are free from discrimination. This includes avoiding discriminatory language when advertising a job, focusing on relevant skills and experience during shortlisting, asking appropriate questions, and applying consistent, job-related selection criteria. By doing so, employers can create an equitable hiring process that promotes diversity and inclusion within the workplace.

Permissible Discrimination: Exceptions under the Equality Act 2010

Despite the EA 2010 setting out protections against discrimination, it is permissible in a few specific, narrowly defined circumstances. These exceptions are designed to achieve a legitimate aim without undermining the fundamental principles of equality and fairness.

An occupational requirement illustrates one such scenario, where possessing a particular protected characteristic could be essential to the job. For example, a women’s refuge may lawfully require staff to be female to ensure that service users feel safe.

Another exception involves the use of a ‘positive action’. For instance, if two candidates perform equally well during the application process, and one is from an ethnic minority background, the employer might choose to offer the role to that individual if there is evidence of underrepresentation of ethnic minorities within the organisation. It must be noted, though, that whilst a ‘positive action’ is permissible, ‘positive discrimination’ is not.

Additional circumstances where discrimination may be justified include statutory exceptions and health and safety considerations. However, these scenarios are uncommon, and in most cases, discrimination won’t be justifiable. Therefore, employers must carefully assess whether their actions could be seen as breaching an individual’s rights.

Navigating Discrimination in Hiring: Steps Towards Seeking Justice

If an individual faces discrimination in the hiring process, there are several steps they can take to seek justice. Before proceeding, it’s important the individual documents the incident swiftly. This could include writing down what transpired or gathering evidence, which could prove useful down the line.

Once in a position to discuss what’s happened, the individual could raise the matter informally with the employer. This could be achieved in person, over the phone or via email. If comfortable doing so, this could be an important step, as it may resolve the issue quickly.

However, if an informal approach isn’t possible or proves unsuccessful, the individual may want to raise a formal grievance. Typically, this involves submitting a written complaint to the employer’s HR; however, it is advisable to check their grievance procedures first. 

Unfortunately, even a formal grievance sometimes doesn’t provide the appropriate outcome. In such circumstances, the individual could consider legal action and initiate employment tribunal proceedings. Should this be pursued, time limits and specific eligibility criteria must be adhered to.

If you have faced discrimination in the hiring process and want help, contact Redmans Solicitors without delay. As specialists in the employment law sector, we can help you navigate the legal process and provide expert advice.

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