Personnel Today reported a story last year about a job advert on the DWP’s Find a Job Website. The DWP told a hair salon their advert could not specify that they wanted a “happy” stylist. It said the advert was discriminatory.
The DWP admitted it had made a mistake in this case, but the point remains that there are 9 Protected Characteristics under the Equality Act 2010 that employers need to be mindful of, whether in recruitment, during employment, or when ending employment. Here’s a summary of what the Protected Characteristics are and when they might take effect.
The Equality Act sets out 9 PCs. These are:
The Equality Act protects employees from discrimination on the above grounds.
It is unlawful to discriminate in recruitment, during employment, and when terminating employment. There are infinite ways in which discrimination can happen, and this blog cannot begin to cover them all, but below are just a handful of examples:
When terminating employment
In recruitment, the employer may discriminate lawfully where a PC is a requirement of the job (Occupational Requirement), but these situations are rare and you should first seek advice. One example would be a deaf worker being required to work with deaf clients. It is also permitted in certain circumstances to encourage applications for people with a protected characteristic – for example, if the employer wants to address that some PCs are under-represented in their workforce.
During employment, in some circumstances, the employer can justify actions as lawful because they have a justifiable business reason for them. They must be a proportionate means of achieving a legitimate aim. Legitimate aims can include running an efficient service, the health and safety of individuals and the desire to make a profit. For example, requiring employees to have a certain amount of experience before they are promoted might be considered indirectly discriminatory to women who have had breaks for maternity leave, but might be justified if that level of experience is proved to be necessary to do the job sufficiently well or to supervise others. “Proportionate” means there must be a balance between the advantage to the employer, and the potential disadvantage to the employee. For example, a physical fitness test for a job might be discriminatory to older candidates, but it might be justified if there is great importance in being sufficiently fit to do the work, even if older employees are disadvantaged.
Employers who fail to consider PCs of their employees or prospective employees may face claims in the Employment Tribunal. Tribunal awards for discrimination are relatively high and we recommend you seek advice at an early stage – for example, when you first begin dealing with a grievance or disciplinary. Consider from the start whether a PC could be a factor and take advice on how to address that and minimise the risks. If making redundancies or offering settlement agreements, be sure to flag up to your advisor if there is a PC that might give rise to a potential claim. For more advice contact us today by calling 0333 888 0290 or email email@example.com
For HR, employment law and Health & Safety services for you or your business visit www.bhayanilaw.co.uk