Recruitment & Selection Training
The attached notes summarise the Equality
Legislation and Principles which underpin the
Recruitment and Selection at Swansea University.
October 2013
Purpose of this Document
This document is issued as a guide to accompany the Recruitment and Selection
training course, it is not a legal document and the information on the law is for
information only purposes. The principles set out in this document include reference
to the University’s procedures. Comprehensive details of University policies and
procedures are to be found on the University’s Human Resources website at
www.swansea.ac.uk/personnel. The legislation changes so for any specific queries,
please contact a member of the HR Department.
The following legislation has been carefully considered in the creation of these
recruitment and selection guidelines:
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Equal Pay Act 1970
Rehabilitation of Offenders Act 1974
Sex Discrimination Act 1975
Race Relations Act 1976 & Race Relations (Amendment) Act 2000
Disability Discrimination Act 1995
Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2002
Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations
2002
Race Relations Amendments Act 2000
Employment Equality (Religion or Belief) (Amendment) Regulations 2003
Employment Equality (Sexual Orientation) (Amendment) Regulations 2003
Employment Equality (Age) Regulations 2006
Equality Act 2010
In addition to this legislation the Commission for Racial Equality, Equal Opportunities
Commission, Disability Rights Commission and the DTI offer invaluable advice in the
form of Codes of Practice.
The following guide provides a brief overview of the legislation identified above. It is
desirable that employees involved in the recruitment and selection process are
aware of this legislation and its impact on our practices and procedures. Further
information on the relevant legislation can be obtained from the HR Department at
any time.
Summary of Legislation
Equality Act 2010
The Equality Act came into force in 2010. It consolidated and streamlined previous
antidiscrimination legislation. The term ‘Protected Characteristics’ was introduced to
describe those attributes which are covered by law.
Protected characteristics:
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Age
Disability
Transgender
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief (including lack of belief)
Sex
Sexual orientation
Notes on specific Protected Characteristics
Disability
The definition of disability is that someone has an impairment which is substantial
(i.e. more than minor or trivial) and has a long-term effect (12 months or more) on a
person’s ability to carry out day-to-day activities.
Day to day activities are not been specified by the legislation.
Organisations have a duty to ensure that reasonable adjustments are put in place for
applicants applying for posts. However, questions may not be asked at the interview
about disability nor are general health related questions permitted.
Transgender
This will cover, for example, someone who is born physically male/female but who
decides to live permanently as a woman/man. For example, chooses to cross dress.
There is no requirement to undergo any medical intervention.
Religion or belief
The Act protects against discrimination because of religious or other philosophical
beliefs. This includes discrimination through not having a belief as well as having a
belief. It is not intended that political beliefs are expressly covered and beliefs need
to have a cogency; be compatible with dignity and worthy of respect in a civilised
society. The intent is to exclude beliefs which denigrate or are incompatible with the
rights of others. The individual with the belief is protected; the belief itself is not.
Employment Equality (Age) Regulations 2006
The regulations came into force on 1 October 2006. They provide protection in the
workforce against all forms of discrimination based on Age.
Employment Equality (Sexual Orientation) (Amendment) Regulations 2003
The regulations came into force on 1 December 2003. They provide protection in
the workplace against all forms of discrimination based on sexual orientation.
Employment Equality (Religion or Belief) (Amendment) Regulations 2003
The regulations came into force on 2 December 2003. They provide protection in
the workforce against all forms of discrimination based on grounds of religion or
belief. ACAS guidance, on commonly practised religions is attached to these notes.
Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2002
The regulations seek to ensure that part-time workers are not treated less favourably
in their terms and conditions of employment than a comparable full-time worker,
unless it is objectively justified. Before these regulations part-time workers claims
were usually linked to sex discrimination, as the majority of part-time workers were
women and any less favourable treatment which occurred, was because of their sex.
Whereas sex discrimination applies to direct and indirect discrimination, these
regulations only refer to direct discrimination.
In terms of the recruitment and selection process, care should be taken to offer the
same terms and conditions to all employees regardless of their part/full time status.
Fixed-term Employees (Prevention of Less Favourable Treatment)
Regulations 2002
The regulations seek to ensure that fixed-term employees are not treated less
favourably than a comparable permanent employee with regard to the terms and
conditions of their employment, which includes training opportunities, promotions,
holidays, salary etc.
In terms of the recruitment and selection process care should be taken to offer the
same terms and conditions to all employees regardless of their permanent/fixed-term
status.
The Race Relations (Amendment) Act 2000 placed specific duties on public
authorities. As a higher education institution these duties included the preparation of
a written statement of our policy for promoting race equality, the assessment of the
impact of this policy, the monitoring of recruitment and career progress of staff by
reference to racial groups and the publishing of the results of the monitoring carried
out.
Disability Discrimination Act 1995
The act regards a person as being disabled if “he has a physical or mental
impairment, which has a substantial and long-term adverse effect on his ability to
carry out normal day-to-day activities”.
It is unlawful to discriminate against a disabled person for a reason that relates to the
person’s disability, or to treat them less favourably than they would treat others to
whom that reason does not apply. It may only justified if it is both material to the
circumstances of the particular case and substantial.
It is the duty of the employer to make reasonable job-related adjustments, to correct
circumstances where a disabled person is placed at a disadvantage in comparison
with persons who are not disabled, to prevent those features having that effect.
Adjustments could include altering work hours, assigning a different place of work,
providing training, acquiring or modifying equipment, providing supervision etc.
Further advice may be sought from the HR Department.
Care should be taken in the recruitment and selection stages, when indicating the
skills required of the preferred candidate in the person specification e.g.
Advertisements that indicate that a job is only open to candidates who are able
bodied or that the employer is unwilling to make any reasonable adjustments and a
disabled person applies for but is refused that job, the reason for the refusal could be
read as unlawful discrimination.
Sex Discrimination Act 1975 & Race Relations Act 1976
These acts seek to promote equality and prevent discrimination on the grounds of
sex or race.
Rehabilitation of Offenders Act 1974
This act seeks to ensure that if an individual, who has been convicted for a serious
criminal offence, and who does not commit a serious offence within the rehabilitation
period, they may consider themselves rehabilitated and their conviction will be
‘spent’ (treated as having been ‘wiped off the slate’).
It is unlawful to discriminate against an individual who has a spent conviction.
Further guidance can be found in document L3137 – Policy on the recruitment of Exoffenders and use of the Criminal Records Bureau Disclosure Service.
Equal Pay Act 1970
This act states that men and women should receive equal pay regardless of gender.
Pay not only refers to salary/wages but also includes occupational pensions, sick
pay – each term in the contract should be equalised. A man or a woman may bring a
claim for equal pay under three headings: Like work; Work rated as equivalent; Work
of equal value.
In Recruitment there must be equal pay (in its widest connotation) for equal work of
work of equal value when making appointments and in decisions about pay points.
Please refer to the Starting Salary guidance.
Previously, an individual who claims they have suffered discrimination in respect of
their contractual pay must identify a ‘comparator’ of the opposite sex who is in the
same employment or doing equal work/work of equal value and who is better paid.
Under the Equality Act 2010, a comparison can be made with both the predecessor
in post and would also allow a comparison with a successor.
Under previous equal pay law, if the claimant could not point to an actual comparator
then he or she could not make a claim. The Act now says that where there is direct
sex discrimination in contractual pay, but no actual comparator, an individual will be
able to bring a sex discrimination claim based on how an employer would treat a
hypothetical comparator of the opposite sex. A case of this nature would also be
subject to injury to feelings awards.
The Act retains the material factor defence – the material factor must be nothing to
do with sex i.e. it must not be directly sex discriminatory and, if indirectly
discriminatory, must be justified as a proportionate means of achieving a legitimate
aim therefore requiring the employer to disprove direct discrimination and justify any
indirect discrimination. The burden of proof is on the employer.
Types of discrimination
The Act outlines the concepts of direct discrimination, indirect discrimination,
victimisation and harassment.
Direct discrimination
Direct discrimination is defined as discrimination ‘because of’ a protected
characteristic.
There are only minor exceptions (for example, some age
discrimination such as retirement, lawful positive discrimination such as relating to
disability and Occupational Qualification) capable of justification.
Discrimination by association
Discrimination occurs if an employer or provider discriminates against someone
because of a protected characteristic, whether or not the individual themselves
possess that protected characteristic. It will be unlawful, for example, to
discriminate against someone because they associate with a third person who
possesses a protected characteristic. This kind of ‘associative discrimination’ will
extend across all of the protected characteristics with the exception of Marriage/Civil
Partnership where individuals would have to be effected directly themselves rather
than through association.
Discrimination by perception
It is unlawful to discriminate against someone because they are perceived to
possess a particular protected characteristic, even if this belief is mistaken.
As with associative discrimination, marriage/civil partnership status is not covered.
Examples here could include point of recruitment where someone is perceived to be
of a particular group, although they are not, and failing to appoint on that basis.
Detriment would fall under the Direct Discrimination provisions of the legislation.
Indirect discrimination
Indirect discrimination occurs when a provision, criterion or practice that applies in
the same way for everybody has an effect which particularly disadvantages people
who share a protected characteristic. This kind of discrimination is unlawful unless
the employer/provider can show that it is justified. Justification in this context means
that it can be demonstrated to be a proportionate means of achieving a legitimate
aim. Assertion alone will not amount to justification.
The implications include that someone who has a disability will be able to complain
that an organisation has adopted a provision, criterion or practice which puts people
with the same disability at a particular disadvantage. To avoid liability the
employer/provider will have to demonstrate that the provision, criterion or practice is
justified as a proportionate means of achieving a legitimate aim.
There is no ‘lack of knowledge’ defence available i.e. that it was not known that the
individual was disabled or might be adversely affected.
Other implications range right across the different protected characteristics; obvious
ones would include in relation to availability of full and part time employment across
all levels of roles (sex); in the hours of employment (sex/religion and belief) etc. It will
also include how a service is provided and what that service includes.
Detriment arising from disability
This is a new type of disability discrimination. It will replace the previous concept of
‘disability related discrimination’
The new provision states that:
(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B
unfavourably because of something arising in consequence of B’s disability, and (b)
A cannot show that the treatment is a proportionate means of achieving a legitimate
aim.
For example:
 Taking disciplinary action in relation to work absence which arose from a
disability
Duty to make reasonable adjustments
The duty to make reasonable adjustments makes clear that we must make those
adjustments which would permit an individual to apply for a role, or participate in the
selection process without disadvantage (or with alleviation of disadvantage). The
cost should not be passed on to the disabled person.
Harassment
A single test of harassment will apply to all the protected characteristics (other than
pregnancy/maternity and marriage/civil partnerships).
Harassment is defined as unwanted conduct related to a relevant protected
characteristic which has the purpose or effect of violating an individual’s dignity or
creating an intimidating, hostile, degrading, humiliating or offensive environment for
that individual.
The use of the word related is significant. It moves the emphasis away from the
reason for the harassment. It also means that individuals will be able to complain of
behaviour that they find offensive even if it is not directed at them. The ‘victim’
need not possess the relevant characteristic themselves.
For example, a person overhearing offensive comments, or someone exposed to
offense images related to a protected characteristic would be able to make a claim
based on those comments/images creating an intimidating, hostile, degrading,
humiliating or offensive environment even if they do not possess the protected
characteristic themselves.
As under existing law, harassment will also include unwanted conduct of a sexual
nature and less favourable treatment for rejecting/submitting to sexual conduct or
unwanted conduct based on sex/gender reassignment.
Exceptions
Occupational Requirement
This replaces the early terms of Genuine Occupational Requirements and Genuine
Occupational Qualifications. This is where it is necessary (a proportionate means of
achieving a legitimate aim) for someone to have a specific protected characteristic in
order to carry out a role. These include preservation of decency or privacy, the
essential nature of the job calls for authentic male or female characteristics, for
reasons of authenticity. Examples include acting and modelling, minister of religion
etc. The use of an Occupational Requirement is very rare at the University
Preference is not permitted. The guidance states that the ‘requirement must be
crucial to the post, and not merely one of several important factors’.
The requirement must relate to the nature of the job in question (e.g. Rape Crisis
Counselling), rather than the nature of the employing organisation and the test will
not be satisfied if it would have been reasonably possible to achieve the result in
some other way.
Age discrimination
Age discrimination remains as now and covers chronological age. There are some
legal provisions where it is not possible to employ an individual under a certain age
(e.g. bar work).
Tribunals
As with existing discrimination law, if an employment tribunal upholds a claim of
discrimination, it will be able to make a declaration as to the rights of the parties.
The Act expands tribunals’ existing powers so that a recommendation can be aimed
addressing the effect of discrimination on any other person within the organisation
rather than simply addressing the implications for the original complainant.
For example, a tribunal could make recommendations to address issues of
harassment across an organisation when only one person has taken a claim.
There is no change in the level of awards that can be made.
uncapped.
These remain
Non employment claims, will as now, be heard through the Court rather than tribunal
system.
Equality data protection – public sector
There are specific duties for public bodies including the University to publish equality
data in relation to recruitment and selection.
Positive action
Positive Discrimination is unlawful however Positive Action is lawful in certain
circumstances e.g. encouraging applications from certain under-represented
genders or minority ethnic groups. However, the criteria for selection will not relate to
their gender or race and must solely be based on the agreed objective criteria as set
out in the person specification.
Organisations have been permitted to take ‘positive action’ measures where there
has been evidence of under representation. It has covered employment areas such
as job adverts, training, mentoring and other forms of encouragement for certain
forms of work, but did not allow employers to take any form of positive action at the
actual point of recruitment or promotion. New provisions now allow employers to
recruit or promote someone because of their protected characteristic, in preference
to another candidate, if he/she is ‘as qualified as’ the other candidate, and there is
no other way to decide on who to appoint. So in the case of two equal candidates
with no difference in ability to carry out the job. We cannot enter into the
recruitment/promotion process with the express intent of advantaging that group but
must ensure that we recruit the best candidate based on merit.
Public sector single equality duty
The Act introduces a new ‘single’ equality duty to replace the existing race, disability
and gender equality duties by April 2011. The new general public sector duty will
apply not only to public sector bodies (such as government departments, local
authorities, NHS Trusts etc) but also to organisations in the private and third
sectors that carry out functions of a public nature’. Procurement will also be
explicitly used to hold private sector companies to account on equality issues and as
a force to drive equality.
The new equality duty will require all public bodies (and those to whom it accrues the
duties), in the exercise of their functions, to have ‘due regard to the need to:
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Eliminate discrimination, harassment, victimisation and any other conduct that
is prohibited
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Advance equality of opportunity between persons who share a ‘relevant
protected characteristic’ and persons who do not share it,
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Foster good relations between persons who share a relevant protected
characteristic and persons who do not share it.’
To advance equality of opportunity, organisations will need to have due regard, in
particular, to the need to remove or minimise disadvantages suffered by people who
share a relevant protected characteristic that are connected to that characteristic
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Take steps to meet the needs of people who share a relevant protected
characteristic that are different from the needs of people who do not share it
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Encourage people who share a relevant protected characteristic to participate
in public life or in any other activity in which participation by such people is
disproportionately low
The duty applies to the protected characteristics of age, disability, gender
reassignment, pregnancy and maternity, race, religion or belief, sex and sexual
orientation. This represents a significant widening of the obligations in addition to
race, disability and gender currently in place.
On this occasion, pregnancy and maternity are included within the characteristics
covered by the public sector duty; however, civil partnership and marriage are
excluded.
Enforcement of the Law
The Commission for Equality and Human Rights are the advisory and enforcement
body across all of the Equality Strands. They can:
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Conduct formal investigations, with or without the employer’s consent
Issue Non-discrimination Notices requiring employers to comply with the law
Give assistance to a complainant either by giving advice, seeking a
settlement, or arranging for legal advice or representation before a court or
tribunal.
If the University were brought before an Employment Tribunal by a candidate for a
job claiming discrimination at the short-listing or interview stage the university would
have to demonstrate that:
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The appointed candidate most suitably conformed to the ‘genuine
requirements’ of the post
The candidate was not discriminated against, either directly or indirectly on
the basis of sex or race
That a disable candidate was not unjustifiably discriminated against. Any such
treatment must be only for good reason which was substantial and material to
the particular case.
Liability
Those involved in recruitment and selection are legally responsible, together with the
University, for ensuring adherence to the above mentioned legislation. However, if
the University has taken all reasonable steps to prevent its staff discriminating, and
this still occurs, then the individual who discriminates is personally liable, possibly for
a substantial fine. Changes in the burden of proof mean that the University and
individuals involved would have to prove that discrimination has not taken place.
If the University had to defend itself at an Employment Tribunal or in the Civil Courts,
the onus would be on the University to prove that:
▪ the selected person/s most suitably conformed to the “genuine
requirements” of the post;
▪ the candidate was not discriminated against, either directly or indirectly, on
the basis of any protected characteristic listed in the Equality Act 2010.
The University would be required to produce:
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A set of objective criteria against which all candidates were measured at the
shortlisting and interview stage
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All relevant documentation such as: the job description and person
specification, the candidates’ application forms, C.V’s, references, the
advertisement and the formal records which were made of each part of the
selection process to demonstrate objectivity in the application of assessment
criteria. A tribunal would also call for monitoring statistics to show the
institutions overall profile with more detailed monitoring figures relating to the
role type and the monitoring data for that particular role (applicant numbers by
equality strand, shortlisted by equality strand, appointed by equality strand.
They would also be very likely to look at historic patterns of appointment to
the department and role type to see whether there appeared to be evidence of
adverse impact.
In the absence of evidence to the contrary, the tribunal would find in favour of the
appellant as the burden of proof falls upon the employer to demonstrate that
discrimination has not occurred.
Ignorance of the law is no defence. Where an Employment Tribunal is satisfied that
a complaint is well founded it can:
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Make an order declaring the complainant’s rights
Award compensation
Recommend action to be taken within a specified period by the discriminating
organisation to put matters right
Additional Points to Remember
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There are no ceilings on the financial awards that can be made in these
cases
There is no defence against direct discrimination save in very limited
circumstances under the Age discrimination legislation
Discrimination cases are frequently widely reported and may cause
considerable damage to the university’s reputation
We want to employ the best person for the job based on merit.