The Equality Act 2010 covers all potential areas of discrimination as detailed in the protected characteristics below:
Areas of equality protected by law
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion and belief
- Sex
- Sexual orientation
What is unlawful discrimination?
Discrimination can come in one of the following forms:
- direct discrimination - treating someone with a protected characteristic less favourably than others
- indirect discrimination - putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage
- harassment - unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them
- victimisation - treating someone unfairly because they’ve complained about discrimination or harassment
Direct Discrimination
Potential examples:
- A job advertisement specifically states that only UK nationals can apply;
- Applicants with foreign- sounding names are not shortlisted for a position;
- Refusing to Interview, employ or promote a person on the grounds of their disability.
- A woman is refused a promotion or training/development opportunity because the employer suspects that she might want to start a family in the near future;
Indirect Discrimination: An employer applies restrictions or conditions to a job which do not relate to a genuine occupational requirement, resulting in certain groups of people being particularly disadvantaged or restricted.
Potential examples are:
- Using terminology such as 'energetic’ or 'active' in a job advertisement;
- Job titles - e.g. Postman, Headmistress etc.;
- Making assumptions that a married person may not be prepared to work late nights or stay away from home;
- Language restrictions such as "Excellent spoken and written English" if not essential to the job:
- Requesting that applicants must have GCSEs or other current UK-Specific qualifications (recognised equivalent qualifications should be accepted);
- An entrenched practice of considering existing managers only for internal promotions to senior roles From a pool of managers who are mostly white;
- An entrenched practice of not considering candidates from areas that may have a higher concentration of a particular race or religion.
- Making assumptions that an employee with a disabled partner or child will be unable to meet the requirements of the role.
Questions about health or disability
Employers are not allowed to ask any job applicant about their health or any disability at any time during the application and interview process, until the person has been:
- offered a job either outright or conditionally, or
- Included in a pool of successful candidates to be offered a job when a position becomes available (for example, if an employer is opening a new workplace or expects to have multiple vacancies for the same role but doesn't want to recruit separately for each one).
No-one else can ask these questions on your behalf either. So you cannot refer an applicant to an occupational health practitioner or ask an applicant to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made (or before inclusion in a pool of successful applicants) except in very limited circumstances, which are explained next.
The point of stopping employers asking questions about health or disability is to make sure that all job applicants are assessed to see if they can do the job in question, and not ruled out just because of issues related to or arising from their health or disability, such as previous sickness absence, which may well say nothing about whether they can do the job now.
Once a job offer has been made, all efforts should be made to enable the successful candidate to perform in the role, including making reasonable adjustments to support them.
What Happens if I ask questions about Health or Disability?
A job applicant can bring a claim against you if:
- you ask health- or disability-related questions of a kind that are not allowed, and
- they believe there has been unlawful discrimination as a result of the information that they gave (or failed to give) when answering such questions.
There is a potential risk of legal action against employer if they ask job applicants any health- or disability-related questions that are not allowed by equality law. This includes sending them a questionnaire about their health for them to fill in before you have offered them a job.
When you are allowed to ask questions which may be related to a protected characteristic?
You can ask questions provided that the purpose of these is to ensure that all individuals are treated equitably and fairly. Please be aware that not all protected characteristics are apparent, unless the individual chooses to share. For example:
- You may ask all applicants for a job role whether any of them needs reasonable adjustments to attend an interview. If you choose to advertise a role externally, you need to ensure that it is advertised in a way which does not exclude or discourage applicants withany protected characteristics in line with the Equality Act. Otherwise this could potentially lead to indirect discrimination, unless you can objectively justify your approach.
- You can ask questions regarding protected characteristics for equality monitoring purposes during the application process, but this would always be confidential and must not be seen by the selectors at any stage.
- Where the question relates to a person's ability to carry out a function that is intrinsic (or absolutely fundamental) to that job. For example, where a health- or disability-related question would mean you would know if a person can carry out that function with reasonable adjustments in place, then you can ask the question.
However, please be aware that, despite this, if having asked such questions of a candidate you then do not employ that individual you may be challenged regarding the legitimacy of these questions in the future and must therefore be satisfied that you can objectively justify the reasons for asking these questions.
The duty to make reasonable adjustments for people with disabilities
The duty to make reasonable adjustments in terms of equality law recognises that equality for disabled people may mean changing the way in which employment is structured, e.g. the removal of physical barriers and/or providing extra support for a disabled worker to provide them with a fair opportunity to perform the role.
The employer pays for the adjustments, and may also apply for Government Assistance. What is considered 'reasonable adjustment' depends, among other factors, on the size of the employer.
If employers fail to make reasonable adjustments, there is a potential risk that they will be challenged by people with disabilities.
Many factors will be involved in deciding what adjustments to make and they will depend on individual circumstances. Different people will need different changes, even if they appear to have similar disabilities.
Employers only have to make adjustments where they are aware – or should reasonably be aware – that an employee or applicant has a disability.
It is important that employers discuss the necessary reasonable adjustments with the person with disabilities, in order to maximise their effectiveness of the adjustment(s).
Which disabled people does the duty apply to?
The duty applies to any disabled person who:
- works for you, or
- applies for a job with you.
It applies to all stages and aspects of employment. So, for example, where the duty arises you must make reasonable adjustments to all employment processes. It does not matter whether the worker was a disabled person when they began working for you, or if they have become a disabled person while working for you.
Obeying another law
You can take into account a protected characteristic where not doing this would mean you broke another law.
For example:
A driving school must reject a 19 year old who applies for a job as a driving instructor because a driving instructor must be aged at least 21.
Please bear in mind that if you are challenged you need to contact your DLES in the first instance. Employers are required to retain records of their reasons for decisions that were made at the time, in line with the GDPR policy.
For further reading please see the links below:
GOV.UK
UK Government guidance on the Equality Act: https://www.gov.uk/guidance/equality-act-2010-guidance
ACAS website (Advice, Conciliation and Arbitration Service)
https://www.acas.org.uk/discrimination-and-the-law/what-an-employer-can-do-to-prevent-discrimination
Equality Human Rights Commission website https://www.equalityhumanrights.com/en/equality-act/equality-act-2010