Employment law becomes applicable at thepoint of advertising for a new role which will require all those involved inthe recruitment process to be fully aware and mindful of legislation inrelation to this.
It is vital that any advertisement is lawfully written andacceptable in terms of what requirements are deemed necessary to fulfil therole, without discriminating in any way, thus meaning that all those applyingfor a job are treated fairly and equitably under The Equality Act 2011, whichprotects people from unfair discrimination. Overall there are seven potential waysof discriminating against a potential candidate which managers need to be awareof: Direct discrimination Direct discrimination cannot be defensible;however there are varying situations in which an advertisement can request acertain type of person due to an Occupational Requirement. Examples of thisinclude when there is a need for authenticity; a prime illustration of thiswould be where employers request a particular racial background for roleswithin a restaurant, with the idea of providing diners with a more authenticexperience. One example of direct discrimination can beshown in the case of Amnesty International v Ahmed (2009), where a decision wasmade not to appoint Ahmed for the position of Researcher on the grounds ofethnic origin. Amnesty International described concerns around violentbehaviour occurring towards Ahmed due to her being of Sudanese ethnic originand having to travel to Sudan as part of the role.
The EAT ruled in Ahmed’sfavour, agreeing that Amnesty based their decision on the appointment of therole on the basis of ethnic origin and was therefore found to be directdiscrimination. Indirect discrimination Indirect discrimination occurs when anorganisation’s practices, policies and procedures have the effect of disadvantagingpeople who share certain protected characteristics (Acas, 2017). This type ofdiscrimination occurs when a rule applies to everyone in the same way but has aworse effect on some people than others. As illustrated in the Rainbow v Milton KeynesCouncil (2007) case, indirect discrimination was ruled in the favour of MsRainbow on the grounds of age. Ms Rainbow was a qualified teacher, aged 61years, and as a result was employed on a very high wage. Upon the schoolexperiencing financial difficulties it was agreed between both parties that MsRainbow would reduce her work to two days a week. Once a full time positionbecame available again Ms Rainbow was rejected without interview.
The tribunalfound the advertisement for the role indirectly discriminated against MsRainbow due to stipulating it would best suit a candidate within their firstfive years of their career. As you can see, employers need to givecareful consideration as to whether it is necessary to specify a particularlevel of experience for a role, and if so, are able to justify it.SelectionAll candidates should be consideredagainst objective criteria, which mean it’s essential that all managersinvolved in the recruitment process are fully aware of what the role entailsand the skills and experience necessary to perform the position successfully.Decisions made around the best candidate for the job must be free fromdiscrimination in all forms; however the Equality Act does permit givingpreferential treatment to candidates from an under-represented group, but onlyin circumstances where the candidates are as capable as each other. An exampleof this could be in a situation where there is a lack of women holding the ‘topspots’ in an organisation, and a decision is made on the grounds of just this,that they require a woman over a man to give more of a balance – this will beseen as lawful.