Discrimination in job recruitment

Thu 28 September 2023

Recruiting discrimination – legal and other risks for employers

When running a growing business, it can be very difficult to keep up with laws and regulations. An area which can be particularly difficult for SME businesses is discrimination law.We find that many businesses are unaware that a discrimination claim can be brought in the Employment Tribunal by a non-employee, someone who applied for a role at your business and was rejected.

It’s generally not enough to be mindful of ensuring fairness in recruitment in looking at cv’s, asking questions at interview and deciding. There needs to be a clear paper trail evidencing your approach, with appropriate safeguards. Without this, aside from the moral case for absolute vigilance and transparency, there are legal risks and big reputational risks.

Recruitment discrimination – what are protected characteristics?

Protected characteristics are listed in the Equality Act 2010. Employers must ensure that (unless they can justify setting criteria which might discriminate because the job necessitates it) they do not discriminate against applicants based on race, religion, disability, sex or sexual orientation or gender reassignment, age or religious belief.

Discrimination can occur in either a direct way or an indirect way. With direct discrimination, the applicant is treated less favourably because the prospective employer knows or assumes they as an individual have 1 of the protected characteristics. With indirect discrimination the terms of recruitment are unfair without specific reference to any individual applicant, such as putting age restrictions on a job role.

How can employers get things right and minimise legal risk

Employers should first and foremost ensure that they have clear policies and procedures for recruitment and that these are consistently monitored and applied. Often employers think they are safe just by having these documents or having “blind” recruitment policies and then end up discriminating in the interview or afterwards.

All aspects of the process should be documented and employers should also be consistent about post interview processes including providing feedback.

Part of the risk to employers is that unlike other court claims, a claim in the Employment Tribunal which may be speculative comes with little risk to the person making the claim (because generally speaking the claimant is not at risk of paying legal costs if they lose) or even an allegation of suspected discrimination on social media. Allegations of recruitment discrimination can be very damaging. Despite the fact a company can take legal action for defamation, a better option may be to have clear paperwork and documents which clearly rebut any suggestion.

First steps in a claimant alleging unfair rejection

It is for a claimant to prove employment discrimination and this is not straightforward. The first thing a rejected applicant is likely to do if he/she suspects discrimination is to submit a Subject Access Request (“SAR”) demanding data about them. The employer then has 1 month (which can be extended) to produce all data it has relating to the person.

Data released after a Subject Access Request rarely, if ever, will be enough to prove discrimination. This is because the complainant will need a comparator for direct discrimination. Typically, the complainant will ask for other documents and data such as any Equality data, the document trail for the job he/she was rejected for and often lots more. The employer then has a dilemma – what, if anything, to disclose and how much?

Failure to disclose any information, documents or data may increase the risk of allegations being made public and also carries the risk, if an Employment Tribunal discrimination claim is made, of adverse inferences being made by the Tribunal because no documents have been provided after request.

Case law examples

In pure legal terms, it is difficult for job applicants to prove discrimination during recruitment. There are not many examples of reported claims which have reached a Tribunal hearing. Most court claims of all types do not reach a trial and are settled out of court. Reported cases do include :-

Discrimination where after a job offer was made, the employer discovered, when getting references that the claimant had had a lot of time off work and had a disability. The employer then withdrew the job offer.
Age discrimination related claim based on indirect discrimination where an existing employee wanted to apply for an internal role where there was a disproportionate bias towards staff under the age of 55.

How we can help

With an experienced team of employment lawyers, we advise and represent both employers and those who believe they have suffered discrimination. Please do get in contact to tell us about your situation or needs and to find out more about us and how we can assist.