There are some legal restrictions on employers’ freedom to recruit. The Trade Union and Labour Relations (Consolidation) Act 1992 prohibits an employer from basing its recruitment decision on whether or not an applicant is a trade union member. The Equality Act 2010 provides that an employer recruiting workers should not treat them less favourably on the basis of their age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. These are known as ‘protected characteristics’ ( equal opportunities - overview ). It is also unlawful to discriminate indirectly at any stage in the recruitment process against people with a protected characteristic unless this can be objectively justified. Further, employers must make reasonable adjustments for disabled applicants where appropriate ( equal opportunities ).
Under the Immigration, Asylum and Nationality Act 2006, employers are under a duty to ensure that any person recruited is entitled to work in the UK ( the right to work in the UK ).
The Equality and human rights commission ( EHRC ) has produced a statutory Code of practice on employment that contains a detailed description of the Equality Act and a number of recommendations about avoiding discrimination in recruitment that are mentioned in this Guide.
Although it is not in itself unlawful to ignore this Code, it is unwise to do so for two main reasons. An employment tribunal that hears a discrimination claim must take into account whether the employer has complied with the Code when deciding whether discrimination has occurred. It must also take into account whether an employer has followed the Code when deciding whether the employer should escape liability for discrimination in the recruitment process because it had taken ‘all reasonable steps’ to prevent the discrimination occurring ( reasonably practicable steps defence ).
It is important that those involved in the recruitment process should be given training in how to avoid discrimination. If an unsuccessful applicant complains of discrimination to an employment tribunal, one of the first questions interviewers are likely to be asked is whether they have received training in how to avoid discrimination. If the answer is no, the employer will be at a serious disadvantage in defending the claim.
The Code says that it should be read with an awareness that large and small employers may carry out their legal duties in different ways. However, no employer is exempt from its legal duties because of size. Therefore all employers, including small ones, would be well advised to ensure that their recruitment practices are consistent with the Code’s recommendations.
Recruitment involves the gathering of personal information on candidates, and recruiters must therefore ensure that they comply with the requirements of the Data Protection Act 1998 in the way they obtain and handle this information. The Information Commissioner has issued a Code giving guidance for employers on how to comply with the law, and this section refers to the part of the Code that deals with recruitment and selection ( Recruitment links ). Although there is no express legal requirement to comply with this Code, it could be referred to as evidence should the Commissioner decide to take legal action against an employer for failing to comply with data protection principles.