Practical applications of discrimination law in the workplace

Applying for jobs

Job Adverts: It is unlawful to advertise a job stating that an individual must be of one sex, race, or any other protected characteristic. The only exception is where there is a Genuine Occupational Requirement for a person to have (or not have) a protected characteristic (for example, the need for an actress to play a female role). (Part 1 of Schedule 9 EA 10).

The Equality and Human Rights Commission (EHRC) Code of Practice contains guidance on non-discriminatory recruitment practices.

Immigration checks: Immigration laws impose a legal duty on employers not to employ individuals who have no right to work in the UK (See Chapter 3: References and employment checks). Employers must ensure they meet their immigration duties in a non-discriminatory way, for example by requesting documentary evidence of the right to work from all workers, rather than making assumptions about nationality and immigration status.

The UK Border Agency (UKBA) has produced a statutory Code of Practice: Guidance on avoidance of unlawful discrimination in employment practices while seeking to prevent illegal working, February 2008, which an employment tribunal must take into account where relevant to cases of race discrimination. A copy can be downloaded from the UKBA website.

Pre-employment health checks: Under section 60 EA 10, an employer must not ask about a job applicant’s health before offering employment. The ban covers people like recruitment agencies who ask questions on behalf of the employer. There are some narrow exceptions. In particular, an employer is allowed to ask a question that is necessary:

• to establish whether any reasonable adjustments are needed to the application process;

• to establish whether the candidate will be able to carry out a function intrinsic to the role, after making any reasonable adjustments;

• to monitor diversity (in which case, information should be anonymised and kept separate from the main application process);

• to support positive action for disabled people.

For more information on what employers can and cannot ask during recruitment, for example the new ban on questions as to an employee’s pension opt-out intentions and the law on asking about past convictions, see Chapter 3: Starting work and the Employment Contract.