Employment law becomes applicable at the
point of advertising for a new role which will require all those involved in
the recruitment process to be fully aware and mindful of legislation in
relation to this. It is vital that any advertisement is lawfully written and
acceptable in terms of what requirements are deemed necessary to fulfil the
role, without discriminating in any way, thus meaning that all those applying
for a job are treated fairly and equitably under The Equality Act 2011, which
protects people from unfair discrimination. Overall there are seven potential ways
of discriminating against a potential candidate which managers need to be aware


Direct discrimination


Direct discrimination cannot be defensible;
however there are varying situations in which an advertisement can request a
certain type of person due to an Occupational Requirement. Examples of this
include when there is a need for authenticity; a prime illustration of this
would be where employers request a particular racial background for roles
within a restaurant, with the idea of providing diners with a more authentic


One example of direct discrimination can be
shown in the case of Amnesty International v Ahmed (2009), where a decision was
made not to appoint Ahmed for the position of Researcher on the grounds of
ethnic origin. Amnesty International described concerns around violent
behaviour occurring towards Ahmed due to her being of Sudanese ethnic origin
and having to travel to Sudan as part of the role. The EAT ruled in Ahmed’s
favour, agreeing that Amnesty based their decision on the appointment of the
role on the basis of ethnic origin and was therefore found to be direct


Indirect discrimination


Indirect discrimination occurs when an
organisation’s practices, policies and procedures have the effect of disadvantaging
people who share certain protected characteristics (Acas, 2017). This type of
discrimination occurs when a rule applies to everyone in the same way but has a
worse effect on some people than others.


As illustrated in the Rainbow v Milton Keynes
Council (2007) case, indirect discrimination was ruled in the favour of Ms
Rainbow on the grounds of age. Ms Rainbow was a qualified teacher, aged 61
years, and as a result was employed on a very high wage. Upon the school
experiencing financial difficulties it was agreed between both parties that Ms
Rainbow would reduce her work to two days a week. Once a full time position
became available again Ms Rainbow was rejected without interview. The tribunal
found the advertisement for the role indirectly discriminated against Ms
Rainbow due to stipulating it would best suit a candidate within their first
five years of their career.


As you can see, employers need to give
careful consideration as to whether it is necessary to specify a particular
level of experience for a role, and if so, are able to justify it.


All candidates should be considered
against objective criteria, which mean it’s essential that all managers
involved in the recruitment process are fully aware of what the role entails
and the skills and experience necessary to perform the position successfully.
Decisions made around the best candidate for the job must be free from
discrimination in all forms; however the Equality Act does permit giving
preferential treatment to candidates from an under-represented group, but only
in circumstances where the candidates are as capable as each other. An example
of this could be in a situation where there is a lack of women holding the ‘top
spots’ 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 be
seen as lawful. 

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