Recruitment Discrimination UK: How to Avoid Illegal Hiring Practices

Discrimination claims from rejected candidates are expensive and damaging. Here's how to recruit fairly and prove it if challenged.

The 9 Protected Characteristics

Under the Equality Act 2010, you cannot discriminate based on:

1. Age - Any age, not just older workers
2. Disability - Physical or mental impairment with substantial long-term effect
3. Gender reassignment - Being transgender or in process of transitioning
4. Marriage and civil partnership - Being married or in civil partnership
5. Pregnancy and maternity - Pregnancy and 26 weeks after birth
6. Race - Colour, nationality, ethnic or national origin
7. Religion or belief - Any religion, lack of religion, or philosophical belief
8. Sex - Male or female
9. Sexual orientation - Heterosexual, gay, lesbian, bisexual

Types of Discrimination

Direct Discrimination

Treating someone less favourably because of a protected characteristic.

Examples:

• Not shortlisting female applicants for engineering role
• Rejecting someone because they're "too old"
• Not interviewing candidates with foreign-sounding names
• Asking only women about childcare plans
• Offering lower salary to disabled candidate for same role

Defence: Almost none. Direct discrimination is unlawful except in very limited circumstances (genuine occupational requirement).

Indirect Discrimination

A policy or practice that disadvantages people with a protected characteristic.

Examples:

• "Must be available 24/7" (disadvantages parents, carers, people with disabilities)
• "Must be 6ft tall" (disadvantages women, some ethnic groups - unless genuine requirement)
• "UK degree required" (disadvantages foreign nationals - unless justified)
• "Full-time only" (disadvantages women, disabled people - unless justified)

Defence: Can be justified if it's a proportionate means of achieving a legitimate aim. But you must prove this.

Harassment

Unwanted conduct that violates dignity or creates intimidating, hostile, degrading, humiliating or offensive environment.

Examples in recruitment:

• Sexual comments or questions in interview
• Racist jokes or comments
• Comments about appearance, age, or disability
• Inappropriate questions about personal life

Victimisation

Treating someone badly because they complained about discrimination or supported someone else's complaint.

Example: Rejecting candidate because they raised discrimination complaint at previous employer.

Common Recruitment Discrimination Mistakes

Age Discrimination

What NOT to do:

• Ask age or date of birth on application
• Require "recent graduate" or "X years' experience" (proxies for age)
• Say "young, dynamic team"
• Ask "When did you graduate?" (reveals age)
• Assume older workers can't learn new skills
• Assume younger workers lack experience

What TO do:

• Focus on skills and competencies
• Ask "Do you have the required skills?"
• Use "energetic" not "young"
• Accept experience from any point in career

Sex Discrimination

What NOT to do:

• Ask women about children or childcare
• Assume women will take maternity leave
• Prefer men for physical roles without justification
• Prefer women for customer-facing roles
• Pay women less than men for same role

What TO do:

• Ask all candidates same questions
• Assess ability to do job requirements, not assumptions
• Job-share and flexible options for all
• Equal pay for equal work

Pregnancy and Maternity Discrimination

What NOT to do:

• Ask if pregnant or planning pregnancy
• Reject because visibly pregnant
• Assume pregnancy means unreliability
• Withdraw offer after discovering pregnancy

What TO do:

• Assess on ability to do job
• Offer role as you would to any candidate
• Discuss start date and any adjustments if needed

Disability Discrimination

What NOT to do:

• Ask about health before conditional offer
• Assume disability means inability
• Fail to make reasonable adjustments
• Reject without discussing adjustments

What TO do:

• Ask "Can you do this job (with adjustments if needed)?"
• After offer, discuss adjustment needs
• Make reasonable adjustments
• Focus on ability, not disability

Race Discrimination

What NOT to do:

• Ask "Where are you really from?"
• Assume English proficiency from name or appearance
• Require "UK experience" unless genuinely necessary
• Reject based on accent or name

What TO do:

• Treat all applicants equally
• Assess language skills objectively if required
• Consider international experience as valuable
• Use blind CV screening

Positive Action vs Positive Discrimination

Positive Action (Legal)

Taking steps to encourage underrepresented groups to apply or help them compete equally.

Examples:

• Stating "We particularly welcome applications from [underrepresented group]"
• Targeted advertising in publications for specific communities
• Providing application support or information sessions
• Work experience or training for underrepresented groups

Crucially: Still select based on merit. Don't give jobs to underrepresented groups automatically.

Positive Discrimination (Illegal)

Giving preference in hiring to someone because of protected characteristic.

Illegal examples:

• "We need more women, so we'll hire the female candidate even though the male candidate scored higher"
• Gender or race quotas in hiring
• Automatically shortlisting candidates from underrepresented groups

Exception: Tie-break provision. If two candidates are equally qualified, you can choose the one from an underrepresented group if you reasonably think they're disadvantaged in relation to that characteristic.

Genuine Occupational Requirement (GOR)

Very rare exception where being a particular race, sex, religion, etc. is a genuine requirement for the job.

Examples:

• Female changing room attendant (sex GOR)
• Actor for specific role (race/sex GOR)
• Religious organization requiring someone of that faith (religion GOR)

Must prove:

• Requirement is crucial to the role
• Proportionate way of achieving legitimate aim
• No alternative approach

Not GOR:

• "Customers prefer women" - Not valid
• "Team is all men" - Not valid
• "Role requires strength" - Test strength, don't assume based on sex

How to Defend Against Discrimination Claims

Evidence You Need

Keep for at least 6 months (12 months safer):

1. Job documentation:

• Job description and person specification
• Advertisement copy
• Where you advertised

2. Application records:

• All applications received
• Shortlisting matrix with scoring
• Objective criteria used
• Reasons candidates were rejected/shortlisted

3. Interview records:

• Questions asked (same for all candidates)
• Interview notes and scores
• Assessment against criteria
• Reasons for selection

4. Decision rationale:

• Why successful candidate chosen
• Why others rejected
• Evidence it was based on job-relevant factors

What Makes a Good Defence

Show you:

• Applied same process to all candidates
• Used objective, job-relevant criteria
• Scored all candidates consistently
• Based decision on evidence, not assumptions
• Didn't ask discriminatory questions
• Made reasonable adjustments if requested

Cannot defend by saying:

• "We didn't intend to discriminate"
• "We didn't know it was discrimination"
• "We treat everyone the same" (if your process indirectly discriminates)

Discrimination Claims: What to Expect

Timeline

Claimant must:

• Notify ACAS within 3 months of discrimination
• ACAS Early Conciliation (1 month attempt to settle)
• Lodge tribunal claim if no settlement

You get:

• ET1 claim form stating alleged discrimination
• 28 days to respond with ET3 defence
• Disclosure of evidence
• Tribunal hearing (usually 6-12 months after claim)

Compensation

No cap on compensation. Awards include:

Injury to feelings:

• Lower band: £1,000-£11,000 (less serious, one-off)
• Middle band: £11,000-£33,000 (serious, significant impact)
• Upper band: £33,000-£60,000 (very serious, long-term harm)

Financial loss:

• Loss of earnings if rejected for discriminatory reasons
• Future loss if career impacted

Aggravated damages:

• If you handled claim poorly
• Additional £5,000-£15,000+

Total awards: Typically £5,000-£30,000, but can exceed £100,000 for serious cases.

Legal Costs

Even if you win:

• You usually pay your own costs (£10,000-£30,000+ for legal representation)
• You only recover costs if claimant acted unreasonably
• ACAS conciliation may settle for £3,000-£10,000 to avoid risk

How to Recruit Without Discriminating

1. Job Description and Person Specification

Do:

• List genuine requirements for role
• Separate essential vs desirable
• Focus on skills and competencies
• Use gender-neutral language

Don't:

• Copy old JDs without reviewing
• Include unnecessary requirements
• Use coded language ("recent graduate", "native speaker")

2. Advertising

Do:

• Advertise widely
• State commitment to equality
• Make clear how to request adjustments

Don't:

• Use discriminatory images (all white, all male, all young)
• Use discriminatory language
• Advertise in limited places only

3. Application Stage

Do:

• Use standardized application forms
• Separate diversity monitoring from selection
• Consider blind CV screening
• Keep all applications

Don't:

• Make assumptions from names or addresses
• Screen out based on gaps or part-time work without reason
• Use different standards for different candidates

4. Shortlisting

Do:

• Use objective scoring matrix
• Score against criteria only
• Have two people review
• Document decisions

Don't:

• Use gut feeling
• Apply different standards
• Screen out protected groups
• Make assumptions

5. Interviews

Do:

• Ask same core questions to all
• Use competency-based questions
• Take detailed notes
• Focus on job requirements

Don't:

• Ask about protected characteristics
• Make assumptions
• Treat candidates differently
• Ask leading questions

6. Selection

Do:

• Base decision on evidence
• Compare against criteria
• Document rationale
• Check for bias

Don't:

• Go with gut feeling alone
• Make assumptions about commitment, capability
• Let personal preferences override objective assessment

Training Your Team

Essential training for anyone involved in recruitment:

• Equality Act protected characteristics
• Types of discrimination
• Unconscious bias awareness
• Legal vs illegal interview questions
• Objective assessment techniques
• Record keeping requirements

When to train:

• Before conducting first interview
• Annual refresher
• After policy changes
• If complaints arise

Key Takeaways

✓ 9 protected characteristics under Equality Act 2010 ✓ Direct, indirect, harassment, and victimisation are all unlawful ✓ Rejected candidates can claim discrimination even without being employees ✓ Compensation is unlimited - typically £5,000-£30,000+ ✓ Keep detailed records to prove you didn't discriminate (6-12 months) ✓ Use objective, job-relevant criteria for all decisions ✓ Apply same process to all candidates consistently ✓ Positive action is legal; positive discrimination is not ✓ Train all hiring managers on discrimination law ✓ When in doubt, focus on job requirements only

Discrimination claims are expensive and damaging. Recruit fairly, document everything, and base all decisions on objective, job-relevant evidence.