Legal Considerations of Recruitment

By: Adam Willoughby

On: 29th September 2015 @ 13:00

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The Legal Considerations

of Recruitment

By Adam Willoughby

Barrister

BROADWAY HOUSE CHAMBERS

1 City Square

Leeds LS1 2ES

& in Bradford

0113 246 2600

awilloughby@broadwayhouse.co.uk

What we will cover…

Equality Act 2010 & Discrimination

What to take into account about an individual when assessing their application

Consideration of future legal issues arising in the course of employment

Practical steps to help ensure compliance throughout

Question & Answer

(The following does not constitute legal advice)

Discrimination

Usage of the word ‘discrimination’ and the many forms

it takes

Equality Act 2010 – ss. 13/19/20/21/26 and 27

Applicability to ‘applicants’

Not necessarily internal job applications

Genuine applicant otherwise no detriment

3 month time limit (generally!)

Stages at which ‘discrimination’

may occur in recruitment

process… (a) The employer who seeks to inhibit applications on

grounds of the protected characteristic, i.e. in the

arrangements the employer makes for the purpose of

determining who should be offered the employment.

(b) The employer who seeks to discourage such an

applicant from taking the job by offering inferior terms.

(c) The employer who comes out into the open and

refuses to give such an applicant the job on any terms.

Harvey on Industrial Relations and Employment Law, 2015

‘Protected Characteristics’

age;

disability;

gender reassignment;

marriage and civil partnership;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

Direct Discrimination

A person (A) discriminates against another (B) if,

because of a protected characteristic, A treats B less

favourably than A treats or would treat others

Comparator

Indirect Discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Reasonable Adjustments

1) Where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

2) Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

3) Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

4) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

Harassment

A person (A) harasses another (B) if—

(a) A engages in unwanted conduct related to a relevant

protected characteristic, and

(b) the conduct has the purpose or effect of—

(i) violating B's dignity, or

(ii) creating an intimidating, hostile, degrading,

humiliating or offensive environment for B.

Victimisation

(1) A person (A) victimises another person (B) if A

subjects B to a detriment because—

(a) B does a protected act, or

(b) A believes that B has done, or may do, a

protected act.

Protected Acts

bringing proceedings under the Equality Act 2010;

giving evidence or information in connection with

proceedings under the Act;

doing any other thing for the purposes of or in

connection with the Act;

making an allegation (whether or not express) that A or

another person has contravened the Act.

Making Arrangements

S.39(1)(a)

prohibits discrimination by employers against applicants in

the arrangements made for offering employment.

The unlawfulness lies in the mere making of discriminatory

arrangements, so that an applicant may complain about

the arrangements for filling the post, even if, in the event,

the post is not filled.

Examples

Short list on the basis of sex

Instruct the personnel manager not to employ married

persons

Brennan v. J H Dewhurst Ltd

Appointing a person to conduct interviews was part of the

arrangements made to fill the post, and those were

discriminatory if the interviewer was in fact biased on

grounds of sex, even though the district manager was

unaware of that when he delegated the interviewing to

him.

Can it be said the arrangements in fact

operate in a discriminatory fashion? McCausland v Dungannon District Council

A recruitment exercise was restricted to those already

working in local government employment in Northern

Ireland, this amounted to indirect religious discrimination

in that it adversely impacted upon Roman Catholics, who

were disproportionately less well represented in local

government as compared to Protestants.'

Terms

S. 39(1)(a)

prohibits discrimination by employers against applicants in

the terms offered for employment

Need not necessarily be a ‘condition’ – remember

indirect discrimination covers ‘provision, criterion, or

practice’

Keep in mind the need to show justification

‘proportionate means of achieving a legitimate aim’

Examples

Flexible working

Mobility clauses

Selection

S.39(1)(c)

Refusing or deliberately omitting to offer the applicant the

job

Specific refusal (i.e. as opposed to error) or deliberate

omission (i.e. as opposed to oversight)

Example

Osborne Clarke Services v Purohit

Indirect discrimination against job applicants

A firm of solicitors sought to justify the automatic

rejection of applications from outside the EEA on the

grounds that it would be difficult (if not impossible) for

such candidates to obtain work permits for the positions in

question. It was held, however, that this was not sufficient

to amount to good justification as there had been no

consideration of individual cases.

What to take into account

Enquiring about disability

s.60 Equality Act 2010 is a new provision: it provides that

except in specified situations an employer must not ask

about a job applicant's health until that person has either

been offered a job (either conditionally or

unconditionally) or been included in a pool of successful

candidates to be offered a job when a suitable position

arises

Section 60(6) permits health related enquiries where

they are necessary for the purpose of:

(a) finding out whether a job applicant would be able to participate in an assessment to test their suitability for the work

(b) Making reasonable adjustments to enable the disabled person to participate in the recruitment process

(c) Finding out whether a job applicant would be able to undertake a function which is intrinsic to the job (with reasonable adjustments in place as required)

(d) Monitoring diversity in applications for jobs

(e) Supporting positive action in employment for disabled people; and

(f) Enabling an employer to identify suitable candidates for a job where there is a genuine occupational requirement for the person to be disabled.

Immigration, Asylum and

Nationality Act 2006

Civil penalty

If he employs an individual aged 16 or over who is subject

to immigration control and either that individual has not

been granted leave to enter or remain in the UK; or the

individual's leave to enter or remain is not valid and

subsisting, or is subject to a condition precluding them

from taking up employment.

Criminal offence of knowingly employing an illegal

worker

Word of Warning

Take care not to discriminate when carrying out checks

i.e. imposing stringent demands on black job applicants

Impose demands universally

See Home Office Code of Practice for Employers

Criminal Records

For most roles, an employer is only allowed to ask about

what are termed ‘unspent cautions and convictions’

under the Rehabilitation of Offenders Act 1974

‘Basic Disclosure’

Do you have any unspent convictions? Yes / No.

Working with children/vulnerable groups

Do you have any cautions, convictions, reprimands or

final warnings which are not protected as defined by

the Rehabilitation of Offenders Act 1974 (Exceptions)

Order 1975 (as amended in 2013)? Yes / No.

These roles may be eligible for a Disclosure and Barring

Service (DBS) check which might be ‘Standard’ or

‘Enhanced’

Data Protection

Under the Data Protection Act 1998, a candidate can ask

to see information held about them – for example, the

application form, interview notes and references, or the

full personal file if the candidate already works for the

organisation

Future Legal Issues

Working time

Travelling to work

Holiday Pay

Commission based roles

‘Dirty hands’ bonus

Broadway House Annual

Employment Law Conference -

9th Oct 2015 – Leeds Crowne Plaza

Booking: www.broadwayhouse.co.uk

Topics:

Disability discrimination, the knowledge defence and workplace stress

Restrictive covenants

Developments in TUPE since the 2014 amendments

Investigations and injunctions, privacy and protection: unfair dismissal – keynote speaker: Jason Galbraith-Marten QC

Holiday pay

£69 per delegate for the full day session / £39 per delegate for a half-day session (morning or afternoon)

Questions and Answers

Adam Willoughby

Barrister

Broadway House Chambers, Leeds & Bradford

www.broadwayhouse.co.uk

awilloughby@broadwayhouse.co.uk

0113 246 2600

Telephone: 0113 322 7240

Website: www.shorebird-rpo.com

Email: marketing@shorebird-rpo.com

Twitter: https://twitter.com/ShorebirdRPO

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