How to avoid discrimination while recruiting – Protected Characteristics

The topic of discrimination in relation to recruiting is vast, that’s why we’ve created this four part mini-series to give you the tools and knowledge you need to help safeguard your businesses from the threat of discrimination during the recruitment process.

In part one we discussed how to remove discrimination when creating job specs and adverts, if you missed this instalment then click here to view the guide.

In this part we’ll be addressing protected characteristics and forms of discrimination to arm you with the information you need to ensure that you stay on the right side of the law when recruiting.

What are the protected characteristics?
The Equality Act provides protection for each of the strands of unlawful discrimination which were previously dealt with under separate Acts and Regulations. These are now referred to as protected characteristics.

There are nine protected characteristics in total:
• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Forms of 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 & Indirect Discrimination
An employer directly discriminates against a candidate or employee if because of a protected characteristic (e.g. age), it treats the person less favourably than it treats or would treat someone else.

Treating someone less favourably means treating them badly in comparison to others.

Direct discrimination can arise even though the person who is complaining of discrimination does not have the protected characteristic (e.g. age). It is only necessary for the person to show that they have been treated badly in comparison to others because of a protected characteristic (e.g. age).

Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) to everyone but this results in people who have a protected characteristic (e.g. disability), being placed at a disadvantage in comparison to people who do not have the protected characteristic. If the employer can objectively justify the application of the PCP this will not amount to discrimination.

Discrimination by association
The 2010 Equality Act also protects candidates, employees and workers if their friends or family members have a protected characteristic and can prove unfair treatment because of that. This is called discrimination by association. For example, if an employee being discriminated against because of their son or daughter’s sexuality.

  • Questions on protected characteristics that you can’t ask when recruiting
  • You must not ask candidates about ‘protected characteristics’ or whether they:
    – are married, single or in a civil partnership
    – have children or plan to have children
    – asking about health or disability

You can only ask about health or disability if:
– There are necessary requirements of the job that can’t be met with reasonable adjustments
– You’re finding out if someone needs help to take part in a selection test or interview
– You’re using ‘positive action’ to recruit a disabled person
– You might be breaking the law if any discrimination happens during their recruitment process, even if you use a recruitment agency.

Asking for a date of birth
You can only ask for someone’s date of birth on an application form if they must be a certain age to do the job, eg selling alcohol.

You can ask someone their date of birth on a separate equality monitoring form. You shouldn’t let the person selecting or interviewing candidates see this form.

Employing people with protected characteristics
You can choose a candidate who has a protected characteristic over one who doesn’t if they’re both suitable for the job and you think that people with that characteristic:
– are underrepresented in the workforce, profession or industry
– suffer a disadvantage connected to that characteristic (e.g. people from a certain ethnic group are not often given jobs in your sector)
– You can only do this if you’re trying to address the under-representation or disadvantage for that particular characteristic. You must make decisions on a case by case basis and not because of a certain policy.
– You can’t choose a candidate who isn’t as suitable for the job just because they have a protected characteristic.

Favouring disabled candidates
When a disabled person and a non-disabled person both meet the job requirements, you can treat the disabled person more favourably.

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