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Legal Principles of the Equality Act in Relation to Recruitment Selection and Employment

Nacro advises employers to adjust their application forms, online portals and hiring policies and procedures to ensure they do not inadvertently discriminate against people with criminal records. Highlight the main checks carried out during the recruitment process and explain the risks and practical considerations to be taken into account when offering employment The Equality Act sets out the circumstances in which an employer may ask health-related questions prior to recruitment. Certain questions are allowed for specific purposes, such as determining whether a candidate can perform an essential function of the role. Further information on the inclusion of references and other legal issues in this area of employment law can be found in our Q&A references. Discover the power of XpertHR`s employment law advice and best practices at the touch of a button. Explore thousands of up-to-date resources to help you increase productivity, build confidence in HR decisions, and execute business strategies. The examination of candidates on the basis of essential and desirable criteria is acceptable under equality legislation, but the rejection of a candidate constitutes discrimination on any of the following grounds: if the employer considers that the conditions are not met, for example, he decides that the references are not satisfactory, he will declare: that the contract is no longer legally binding and that the candidate cannot rely on the terms of the contract. The applicant may try to argue that the references were satisfactory and that the contract is binding. Although unusual, if the plaintiff were to succeed for breach of contract, damages would be limited to the notice period. A reasonable accommodation is any change in the workplace (or the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Criminal record checks are explicitly required for some organizations, particularly those working in regulated activities with various vulnerable groups, but it is commonly and incorrectly accepted that anyone who has contact with children in the course of their employment (for example, a bus driver) must complete a criminal background check.

Excluding candidates out of hand because their right to work is not justified is potentially discriminatory. However, it is acceptable to argue that a right to work in the UK must be introduced later in the recruitment process. All applicants must be legally screened by the prospective employer for their eligibility to work in the UK (see government guidelines on examining a candidate`s right to work). Harassing litigants are people who constantly file lawsuits for no reason. In the context of employment law, litigants can apply for many jobs and (if unsuccessful) take persistent legal action against employers, regardless of the merits of the claims, to seek compensation by settlement or at a hearing. In other cases, a disgruntled ex-employee may retaliate by making numerous claims. The time and expense involved in dealing with a vexatious litigant is daunting for any employer. In some cases, these individuals may be prohibited from bringing civil actions in court without authorization. If employers prevent a person in need of a visa sponsorship from applying for a job, this may lead to a discrimination action based on section 39(1)(a) of the EQA, which prohibits discrimination in the rules governing who should be offered employment. Tony Hyams-Parish is Director of Education and Employment at Rawlison Butler. Contact him on 01293 527744.

Employers should assume that candidates have the right to see interview notes and other documents obtained during the hiring process. Therefore, employers must process CVs, forms, notes and other information obtained during the recruitment process in accordance with the Data Protection Act 2018 (DPA), which requires that all types of personal data be treated fairly and lawfully. Selection of cases of discrimination during the recruitment process If you have exercised due diligence in your recruitment and selection procedures, you can demonstrate how your reasons relate to how the candidate was assessed against the recruitment criteria. This can help the rejected candidate accept the result. The provision does not allow for “quotas” or selection regardless of merit, and employers are not obliged to use this power – the measure is entirely voluntary. Therefore, individuals cannot challenge anyone simply because they do not take positive action. While an unsuccessful minority candidate may argue that an employer`s failure to apply section 159 is evidence of a discriminatory approach to hiring, such an argument is unlikely to succeed. This means that candidates are protected by law from unfair treatment during the recruitment and selection process even before establishing an employment relationship. It may also be possible to target recruitment to underrepresented or disadvantaged groups if they are under-represented in the employer`s workforce. It is a form of “affirmative action”.

Overall, it is important to remember that under the Equality Act, you must treat everyone with fairness, respect and dignity. And you`re still on track to minimize and eliminate discrimination in recruitment and selection at your company. Equality Act 2010 – it is illegal to discriminate in employment – including recruitment and selection – on the basis of the following characteristics: Data Protection Act 2003 – Applicants are informed that the details of their application forms will be used in accordance with the law. This means that the information is confidential and can only be used for assessment and selection, as well as employment records, if their application is accepted. Harassing litigants are rare in recruitment and other contexts. Employers may have to deal with claimants who threaten to claim claims only to receive payment from the prospective employer. In many cases, the rejected candidate is more likely to at least feel like they are grinding a legitimate axe. If an employee wishes to terminate the contract after accepting an offer, it would be technically contrary to the contract. However, it is rare for an employer to demand compensation for breach of contract from an employee who has changed his or her mind.

Only if a new, very old employee changes his or her mind can the decision result in significant costs to the employer. So, while this is a technical violation, it is often not helpful for employers to sue because they would have to prove that they suffered actual losses as a result of the employee`s violation. Typical losses can be the cost of agency employees to fill a gap before a new employee is hired into the position, as well as the cost of subsequent recruitment.