Equal Opportunities In Recruitment


The Equality Act 2010 (EqA 2010) outlaws discrimination and harassment in relation to nine “protected characteristics”:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex; and
  • sexual orientation.

When is discrimination in recruitment unlawful?

An employer (A) must not:

Discriminate against or victimise a person (B):

In the arrangements A makes for deciding to whom to offer employment (section 39(1)(a) and 39(3)(a), EqA 2010

As to the terms on which A offers B employment (section 39(1)(b) and 39(3)(b)).

By not offering B employment (section 39(1)(c) and 39(3)(c)).

In relation to employment by A, harass a person (B) who has applied to A for employment (section 40(1)(b)).

What are “arrangements”

The concept of “arrangements” in the context of section 39(1)(a) of the EqA 2010 are construed broadly.

The arrangements an employer makes for deciding to whom to offer employment are likely to include, for example,

the format and content of application forms;

the physical arrangements, location and timing of interviews; and

the job and person specifications.

For example, a disabled person might complain that reasonable adjustments have not been made to enable them to attend an interview, or a woman with childcare responsibilities might complain of indirect sex discrimination if she is only offered an interview in the evening when she would otherwise be looking after her children.

Someone who has not even applied for a job can theoretically bring a discrimination claim in respect of the employer’s recruitment “arrangements”.

In all likelihood, such a claim would be based on the content of the job advertisement or a statement made by the employer (or recruitment agent) in response to an enquiry.

Who can be liable for discrimination in recruitment?

A claim for discrimination or harassment by a job applicant may be brought against the employer and/or any employees and recruitment agents who were responsible for the discrimination or harassment in question.

As the explanatory notes to the EqA 2010 state, this is “to ensure that both the person carrying out an unlawful act and any person on whose behalf they were acting can be held to account where appropriate”.

As the explanatory notes to the EqA 2010 state, this is “to ensure that both the person carrying out an unlawful act and any person on whose behalf they were acting can be held to account where appropriate”.

Acts of employees

The employer may be vicariously liable under the EqA 2010 for the discriminatory actions of its managers and other employees who have been involved in a recruitment exercise in the course of their employment, even if those acts were contrary to the instructions they were given.

However, the employer will have a defence if it can show that it took “all reasonable steps” to prevent the discriminatory act.

The employee will be liable for knowingly helping the employer, even if the employer can establish the reasonable steps defence (section 112, EqA 2010).

Acts of recruitment agents

The employer may be vicariously liable if it uses consultants or employment agencies to carry out its recruitment exercises where the actions of a consultant or agency are undertaken with the employer’s authority (regardless of whether the agent’s acts were done with the principal’s knowledge or approval).

While the EqA 2010 does not expand on what is meant by “the principal’s authority”, it is suggested that a principal will not be liable for unlawful discrimination carried out by its agents where the agent acted in contravention of the principal’s express instructions not to discriminate.

If the employer is liable, the agent responsible for the discrimination may also be held to have knowingly helped the employer (section 112, EqA 2010).

Recruitment agents, as “employment service providers”, may also arguably be directly liable to an applicant or potential applicant for discrimination, harassment or victimisation, even if not acting on the employer’s authority (section 55, EqA 2010).

Publishers of job advertisements

An organisation which publishes a discriminatory job advertisement on behalf of an employer may be found liable for discrimination under either section 110 or section 112 of the EqA 2010.

Training and instruction on recruitment

The training an employer provides for employees involved in recruitment exercises and the instructions it gives to consultants or agents engaged to undertake recruitment exercises for it are therefore extremely important.

Statutory Codes of Practice

Statutory Codes of Practice can be used in evidence in tribunal proceedings and taken into account by tribunals when deciding claims.

To support the EqA 2010, the Equality and Human Rights Commission (EHRC) produced the Employment Statutory Code of Practice (the EHRC Code).

Part two of the EHRC Code sets out recommended practice for employers and includes chapter 16 which specifically considers recruitment.

This is designed to provide practical best practice advice to employers on how to comply with the legislation.

The underlying message of the EHRC Code to employers is to open up employment opportunities to a wide pool of candidates to ensure access to the best talent available and, by following a clear and objective selection process, avoid stereotypical assumptions of who is likely to be the best candidate for the job.