What Is Recruitment & Employment Discrimination? – An Employer’s Guide

By Peter Brooks

Background:

Several Acts of Parliament, from the Equal Pay Act of 1970 to the Equality Act of 2006, have made it unlawful to discriminate against an employee or a candidate for employment on a number of specified grounds. This legislation is backed up by a series of Regulations released between 1999 and 2006.

Responsibility for advocating the causes of human rights and diversity, and for enforcing the legislation, lies with the Equality and Human Rights Commission, a ‘Non-Departmental Public Body’ set up in 2007 to bring together the work of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. In addition, it holds responsibilty for matters of inequality relating to age, sexual orientation and religion or belief.

What Constitutes Discrimination?

Broadly speaking, it is to make an assumption about or an assessment of an individual’s ability to carry out a job on the basis of some aspect of their character or background, or their membership of a particular social group, which is not pertinent to that job. As such, the practice is regarded as reductive of their human rights and dignity, and is deemed unlawful.

As well as having the obvious potential to demean or distress the person(s) targetted, it is not good business practice. Discrimination can have a demoralising effect on the rest of the workforce, and can taint a company’s public profile to the detriment of its growth.
“Discrimination, whether conscious or not, limits an organisation’s ability to get the best from its workforce. Employers who promote equality of opportunity among their workforce can draw on a wider pool of talent and experience, and create an environment where employees are valued and supported, and appreciate their colleagues’ contribution. A climate where unlawful discrimination is fostered, condoned or ignored cannot provide these benefits.”

Aspects of Discrimination:

Within the bundle of laws that address this issue, certain categories of discriminatory behaviour have been legally defined and outlawed. These are the most significant:

• Direct discrimination – this occurs when a job-description specifically requires membership of a particular group, for instance that all applicants be female or of a certain age-range.
• Indirect discrimination – this takes place when a job-requirement might exclude certain members of the working population through their differences physical or cultural. Examples here are height restrictions and rules against workplace headgear.
• Victimisation – where a complainant is targetted by the employer with arrested promotion or diminution of workplace benefits.
• Harrassment – this might include making threats or unwelcome comments about a person’s background or circumstances, or various forms of sexual contact and/or innuendo.
• Segregation – to separate one or more workers from other members of the workforce on the grounds of their age, gender, ethnic or religious background, disability or sexual orientation.
• Not making reasonable adjustments – the most obvious example of this is where an employer fails to provide wheelchair access and special toilets for the disabled, thus effectively eliminating them from a potential job-opportunity.
• Instructions and pressure to discriminate – employers should not instruct or pressurise employees to put in place practices which might discourage members of disadvantaged or minority groups from full participation in workplace activity.

Key Considerations for Employers:

It is important to note that one of the key tenets of the legislation is that an employer is equally responsible for the discriminatory actions of any employee, whether or not those actions were authorised, unless evidence of comprehensive anti-discrimination policies and practices (for example, equality audits, induction and training, grievance procedures and so on) can be supplied.

As well as complying fully with the requirements of anti-discrimination law, employers pursuing a positive approach will come to recognise that there are clear business advantages to be gained from fostering a climate of equality within the company:

“A firm’s success and competitiveness depends on its ability to embrace diversity and draw on the skills, understanding and experience of all its people. The potential rewards of diversity are significant: an organisation that recruits its staff from the widest possible pool will unleash talent and develop better understanding of its customers. It will also enable it to spot market opportunities. Promoting diversity in the workplace need not be expensive or time-consuming but it does require a commitment from the top to trigger a change in culture and attitude.”

Legislation aside, employers need to be mindful of the negative impact on their business of discriminatory practice: low motivation and morale, poor productivity and higher staff turnover, all these have a direct cost, as does a tarnished reputation.

Action for Employers:

Most employers will already have in place robust policies and procedures for tackling discrimination. Those that do not will need to carry out an audit, write up an equality policy and implement a grass roots action plan in order to avoid rendering themselves liable to challenge under the law. These should be drafted in the spirit of diversity and inclusion, and ideally by entering into dialogue with the workforce. They would include matters relating to:

• Recruitment, selection and promotion: employers should be mindful of the need for the highest possible level of objectivity in the appointment process. Transparent, traceable criteria are useful here. It is recommended that once a list of the qualities demanded by the job has been drawn up, each be given a numerical weighting (according to relative importance) and each applicant be subjected to a scoring process, enabling candidates to be ranked. It is also prudent to file and retain all paperwork, in case of a dispute.
• Pay and benefits
• Retirement
• Training
• Workplace attitudes and behaviour

Once completed, it is important that a communication strategy be also implemented. Staff induction and training in the company’s stance on equality and diversity will need to follow.

Acas can help employers in the drawing up and the execution of an equality policy. In the first instance, see their booklet: ‘Tackling Discrimination and Promoting Equality – Good Practice Guidance for Employers.’

What Groups Are Affected ?

An act of discrimination on any of the following grounds is considered potentially unlawful:

• Age
• Sex
• Disability
• Religion or belief
• Being married or in a civil partnership
• Being pregnant
• Colour, race and ethnic or national origins
• Sexual orientation
• Transgender status

Each of these topics is treated in a separate article. Click on the subject of interest.

More Information:

Equality & Human Rights Commission Helplines:

England – 0845 604 6610
Wales – 0845 604 8810
Scotland – 0845 604 5510
Acas Helpline: 0845 74 74 747

Chartered Institution of Personnel and Development (CIPD) Website: http://www.cipd.co.uk

Equality & Human Rights Commission Website:  http://www.equalityhumanrights.com/en/forbusinessesandorganisation/employers/pages/default.aspx

BERR Website: http://www.berr.gov.uk/whatwedo/employment/discrimination/index.html

Acas Website: http://www.acas.org.uk

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