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A question of prejudice

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Last October, the majority of the Equality Act 2010 came into force. This replaced and consolidated the law on discrimination, making discrimination law more accessible to employees.

Last October, the majority of the Equality Act 2010 came into force. This replaced and consolidated the law on discrimination, making discrimination law more accessible to employees.

The Act lists nine ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation and provides protection against numerous forms of discrimination such as harassment, victimisation and direct discrimination.

Discrimination claims are making the headlines more frequently, such as the case of Sky Sports Presenter, Andy Gray, who was sacked for offensive behaviour and sexist remarks and the successful age discrimination claim brought by Miriam O’Reilly against the BBC.

The impact of these cases is that there is a greater awareness of discrimination law and individual’s rights. It is therefore essential that businesses have a good understanding of discrimination and put mechanisms in place to avoid it.

It is important to bear in mind that discrimination claims are not exclusive to current and past employees or workers. Prior to appointment, prospective employees can claim that they have suffered discrimination during the recruitment process.

The recruitment process has been tested by an increasing trend of job applicants deliberately submitting numerous applications to the same organisation which detail identical qualifications and experience, but vary in respect of the candidate’s age, ethnicity or gender for example.

If some applications are rejected, the applicants then pursue claims for discrimination alleging that it is because of a protected characteristic, given that all the other details given on the application were the same. However, serial litigants bringing claims in this manner and solely for compensation are rarely successful at Employment Tribunal.

Employers must also tread carefully when conducting interviews, since there is a fine line between asking questions to ascertain a candidate’s suitability for a job and asking questions that are discriminatory.

Employers should stick to questions relevant to the job when interviewing candidates. Questions relating to any of the protected characteristics should be avoided, unless the question is relevant to the role. 

Questions such as, ‘Do you have or want to have children?’, ‘What religion do you practice?’, ‘When do you plan to retire?’ and ‘What country are you from?’ could be inappropriate and could have no relevance to the skills linked to the job applied for.

Examples of questions that you can ask include, ‘What are your future career goals?’, ‘Can you describe a situation where you can demonstrate leadership skills?’, ‘How would you react in a crisis at work?’, and ‘Can you tell me about a time when you have successfully managed a team?’. These questions are better focused on finding out how suitable the applicant is for the role.

Although these points may seem obvious, a recruitment process which is not robust or one thoughtless question could result in a discrimination claim. As the law currently stands, there is no fee for bringing claims to a Tribunal and so it is crucial that businesses have a good awareness of the wide scope of discrimination law when carrying out the recruitment process.

For further information please contact our employment team.

Article featured in The Yorkshire Post, 24 March 2011