Practical applications of discrimination law in the workplace 


Applying for jobs


Job adverts: It is unlawful to advertise a job stating that the successful candidate 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. In March 2016, the EHRC published fresh guidance on equality duties for publishers and advertisers of jobs and services, including a new good practice checklist, guidance and a set of FAQs. These materials are available from the EHRC website.


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 carrying out checks on all workers, rather than making assumptions about nationality and immigration status. There is a updated statutory Code of Practice, Guidance on avoidance of unlawful discrimination in employment practices while seeking to prevent illegal working, which employment tribunals must take into account. A copy can be downloaded from GOV.UK. 


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 organisations 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 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, see Chapter 3: Starting work and the employment contract.