There are few legal restrictions on employers' freedom to recruit. The Trade Union and Labour Relations (Consolidation) Act 1992 does, however, prohibit an employer from basing its recruitment decision on whether or not an applicant is a trade union member. And the Sex Discrimination Act 1975 requires that the recruitment process should not be affected by a person's sex, gender reassignment or status as a married person or civil partner. For these purposes, discriminating against a job applicant because she is pregnant or will need maternity leave is automatically viewed as sex discrimination. Racial discrimination in recruitment is also outlawed, by the Race Relations Act 1976. More recently, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation ) Regulations 2003, and the Employment Equality (Age) Regulations 2006 have made it unlawful to discriminate on those grounds.
The discrimination legislation prohibits indirect as well as direct discrimination. This means that it is not only unlawful to base a recruitment decision directly on a person's sex, race, age, religion or sexual orientation (defining discrimination). It is also unlawful for any aspect of the recruitment process to put people of a particular sex, race, religion or sexual orientation at a particular disadvantage, unless the employer has objective justification for designing the process in that way ( justification ). The ways in which indirect discrimination might arise are highlighted in the discussion of the specific stages of the recruitment process that follows.
Disability discrimination in recruitment can also be challenged. The Disability Discrimination Act 1995 makes it unlawful for a company to reject a disabled job applicant on the ground of the person's disability. It is also unlawful for an employer to rejct a disabled applicant for a reason relating to the candidate's disability, unless it has objective justification for doing so (disability discrimination). A company of this size may also be under a legal duty to make adjustments to the recruitment process to accommodate disabled applicants, and disabled people who have notified the company that they are considering applying for the post. This duty applies if the company either knows or could reasonably be expected to know that the applicant or potential applicant is disabled and is likely to be put at a disadvantage by the company's usual recruitment arrangements (duty to make adjustments ). Government funding from the Access to Work scheme (government assistance ) may be available for some adjustments.
Much of the guidance in this section is based on the recommendations of the Codes of Practice issued under the sex, race and disability discrimination legislation and the Immigration and Asylum Act 1999 (discrimination ). Although it is not in itself unlawful to ignore these Codes, it is unwise to do so for two reasons.
An employment tribunal that hears a discrimination claim must take into account whether the employer has complied with these Codes when deciding whether discrimination has occurred. It must also take into account whether an employer has followed the Codes when deciding whether the employer should escape liability for discrimination in the recruitment process because it had taken 'such steps as were reasonably practicable' to prevent the discrimination occurring (avoiding liability for discrimination).
All the Codes emphasise how important it is 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 discrimination Codes acknowledge that small companies may not have the resources to carry out their recommendations in full. However, small employers would nevertheless be well advised to ensure that their practices are consistent with the Codes' general intentions. That means identifying the skills and experience required for the job, matching candidates objectively against those requirements and recording how candidates met or did not meet them.
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.