Candidate Selection
A job description should not contain requirements which are not directly related to the job. It is unlawful for a job advertisement to specify that an applicant must be a particular gender, race etc., unless this is a genuine occupational, qualification or requirement.
Advertisements must not imply that the candidate’s chance of success depends to any extent on not having a disability. The employee must make reasonable adjustments to accommodate disabled persons.
It is advisable not to use expressions such as “young and dynamic”, “just qualified” or a “minimum of ten years experience” as these may constitute age discrimination.
Application forms must be carefully vetted for compliance. Requests for age on an application form are not necessarily unlawful, but care should be taken to ensure that the information does not lead to unjustified discrimination.
It is legitimate to ascertain that an individual has a right to work in the United Kingdom, but this must be undertaken so as to avoid race discrimination. There are certain questions which should not be asked directly or indirectly in an interview. This includes whether a candidate is married, has a partner of the same sex, civil partnership or plans to have children. Information about sexual orientation should not be sought.
There are limits on the extent to which an employer may ask a candidate about his health. A question may not be asked before an offer is made, or the applicant has been included in the pool of candidates to whom the job may be offered.
Information in connection with disability can only be requested to the extent that it is strictly relevant after any reasonable adjustment that is necessary. Reasonable adjustment in this context, refers to changes to accommodate the disability, be they physical or organisational, changes.
Tests must be non-discriminatory. A written test could be justified if good written English is necessary for the job. Where a disabled person applies, a reasonable adjustment will need to be made in relation to the test e.g. given more time, given appropriate facilities.
An employer can face a claim of unlawful discrimination if it picks a person for a job who is less qualified than another person who is female, black etc. It is permissible to offer a disabled applicant a job, even though they are not the best qualified. A recruitment process must always be capable of being justified, in case the matter is referred to an Industrial Tribunal.
There are exceptions for questions that are relevant to the recruitment process for ascertaining whether the applicant can undertake a function which is intrinsic to the job (with reasonable adjustments in place as required).
Age
Age discrimination is unlawful. Discrimination comprises direct discrimination and indirect discrimination in relation to the relevant characteristic that is protected. In relation to the protected characteristic of age, the reference to a person who has a particular protected characteristic is a reference to a person of a particular age group.
Reference to persons who share a protected characteristic is a reference to persons of the same age group. Reference to an age group is a reference to a group of persons defined by reference to age or to a particular age or range of ages. Age includes apparent age.
Indirect age discrimination can arise where a benefit is introduced for employees with more than a certain length of service. However it may be possible to justify this discrimination on the basis of staff retention. Redundancy procedures must be based on the business needs rather than age. Last in, first out may not necessarily be justifiable.
Compulsory retirement at the age of 65 was formerly deemed not be discriminatory.The compulsory retirement age of 65 was abolished pursuant to EU requirements. Compulsory retirement at 65 is unlawful unless it can be objectively justified. An employer may operate a retirement date but it must have a justification. The justification should be written in the s policy or the employment contract and should be justifiable in the above terms in order to be valid under equality law.
It is a defence in the case of indirect discrimination, that the respondent can show that his treatment of the claimant was a proportionate means of achieving a legitimate aim. Legitimate aims are not a closed category and in the context of age may include factors such as
- rewarding experience
- sharing out opportunities between generations
- promoting access to employment for younger persons
- efficient departure and recruitment of staff
- cushioning the blow for long employees who may find alternative employment difficult to secure
- facilitating the participation of older employees avoiding disputes about fitness to work
The cost to the employer is not a sufficient ground of itself
Disability
A person is defined as having a disability if he has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. Normal activities may refer to mobility, speech, memory, physical capacity etc..
Certain categories of person are deemed for this purpose to be disabled including those with specific diseases and conditions. The legislation excludes certain categories including as smoking alcoholism kleptomania hay fever and exhibitionism
The concept of direct and indirect discrimination as applies generally applies in the context of disability. A person (e.g. employer) discriminates against a disabled person if he treats the latter unfavourably because of something arising in consequence of his disability and he cannot show that the treatment is a proportionate means of achieving a legitimate aim
An example of unlawful discrimination, would be where a person who is suitable for the job is refused, simply because he is in a wheelchair. There may be unlawful discrimination where a person is dismissed, because of a long term absence, caused by an accident.
Special rules apply to progressive conditions. Mental illness would not have to be clinically recognised before it is judged to be a mental impairment for the purpose of the Acts. Drug addiction, alcohol addiction or a tendency to start fires, steal or physically abuse is not regarded as an impairment under the legislation.
Reasonable Adjustments
Employers have a duty to make reasonable adjustments to their premises, practice and procedures in order to enable disabled persons to work if they would otherwise be at a substantial disadvantage compared to an non disabled worker.
The duty to make reasonable adjustments arises where
- a provision criteria practice puts a disabled person at a substantial disadvantage in relation to a particular matter in comparison with a person who is not disabled
- where a physical feature puts a disabled person at a substantial disadvantage in relation to the matter in comparison persons who are not disabled
- where a disabled person but for the provision of an auxiliary aid is at a substantial disadvantage in relation to the relevant matter relative to those who are not disabled
Failure to make the relevant adjustments are unlawful discrimination and may be the subject of a complaint to the employment tribunal.
The employer’s duty includes a duty to provide information in an accessible manner.
An employer is not entitled (otherwise than where the Act otherwise allows) to require a disabled person to pay the costs of compliance with the duty
Avoiding a substantial disadvantage includes removing a physical feature (which includes the design of the building features fittings and furniture)s for example by altering it or providing a reasonable means of avoiding it
In determining whether an adjustment is reasonable, the employer may take account of
- its practicality
- how effective it will be
- its cost
- the employer’s resources and size
- the availability of financial support or not
Other Grounds
It is unlawful for an employer to discriminate on the basis of race, origin, ethnicity, colour or nationality. Segregation would obviously be unlawful. Direct discrimination would apply where someone is refused employment because they were non-white. Indirect discrimination may apply where an employer refuses employment because the individual cannot write in English. This could be discrimination if English was not necessary for the job.
It is unlawful for an employer to discriminate against someone on the grounds of religion, belief or lack of religion and lack of belief. Belief could cover things such as atheism and humanism. It would not be permissible for example to pay Christians less than non Christians. Indirect discrimination could occur if an application required applicants to handle pork and pork products. This could be justified if it was absolutely necessary and there was no way the job holder could avoid handling pork.
It is unlawful to discriminate against someone on the ground of sexual orientation towards people of the same sex or the opposite sex or both. Direct discrimination would apply where an employer refused to employ a homosexual man. Indirect discrimination could occur for example where an employer placed a job in a newspaper or magazine aimed at gays/lesbians.
Employees have a right not to be refused employment, because they are or are not, a member of a trade union or have plans to join or refuse to join a trade union. An employer must not treat workers unfairly during their employment where the treatment aims to prevent the worker becoming the member of a trade union carrying out trade union activities, or making use of trade union services. It is automatically unfair to dismiss an employee on trade union membership grounds.
Victimisation is unlawful. It is victimisation for an employer to treat an employee unfairly because of giving evidence and issuing proceedings or alleging legal contraventions.
Ill Health and Discrimination
If an employee is suffers from chronic ill health, it is important to determine whether or not, he or she is disabled under the Disability Discrimination Act. An employee may be subject to the legislation, if his illness is substantially long term and adversely affects his ability to perform normal day to day activities. A person is disabled once he has been diagnosed with cancer, HIV, and multiple sclerosis. People with medial illness are also deemed disabled under the legislation.
An employer has a duty to make reasonable adjustments to premises and working practices for disabled persons, if not doing so would put the employee at a substantial disadvantage. Failure to make reasonable adjustments could lead to a claim of disability discrimination at an Employment Tribunal.
It may become unfeasible to continue employing an employee with an illness, because there is no reasonable adjustments that can be made to allow the employee to continue working. In this case, it may be fair to dismiss, even if the employee is disabled. At the very least the statutory internal procedures must be followed fully in the case of a disabled employee.
As an alternative to dismissal on the grounds of ill health, it may be possible to reorganise the work and redesign the job. This could involve offering relocation, retraining, alteration of hours, eliminating shift work, offering homework etc.
An employee may be entitled to pension payments depending on the rules of his pension scheme.
Atypical Workers
Part-time workers must be treated in the same way as comparable full time workers. Part-time workers are not be treated less favourably than their employer treats a comparable full-time worker. Conditions of employment are applied pro rata.
A comparable full time worker is one who works for the same employer and does similar work under the same type of contract. Accordingly part-time workers must enjoy pro rata, the equivalent terms and conditions including equal rates of pay, equal rates for overtime, equal entitlements to company pension scheme and benefits, equal access to training and career development, equal holiday entitlement, equal right to career break, equal contractual sick pay, contractual maternity and parental leaves, equal treatment in promotion.
Exceptionally, different treatment can be justified on objective grounds. For example, it may be possible to justify exclusion of a part time worker from a health insurance scheme on the basis of disproportionate cost. Part-time workers who believe they are not being treated equally are entitled to a statement of the written “reasons why” within twenty one days. A part-time worker who does not accept the reasons given is entitled to apply to the Employment Tribunal. It can make an order for compensation if it finds that the treatment is not equal.
A fixed term employee is not be treated less favourably than comparable permanent employees.
