Key Legislation regarding Recruitment and Selection
The Equality Act 2010
The Equality Act came into force on 1 October 2010 and it aims to provide a simpler, more consistent and more effective legal framework for preventing discrimination. The stated aim of the Act is to reform and harmonise discrimination law, and to strengthen the law to support progress on equality. It will replace the following equality legislation:
- the Equal Pay Act 1970
- the Sex Discrimination Act 1975
- the Race Relations Act 1976
- the Disability Discrimination Act 1995
- the Employment Equality (Religion or Belief) Regulations 2003
- the Employment Equality (Sexual Orientation) Regulations 2003
- the Employment Equality (Age) Regulations 2006
- the Equality Act 2006, Part 2
- the Equality Act (Sexual Orientation) Regulations 2007
It also introduces new measures that will have direct implications for higher education institutions (HEIs).
The Equality Act covers the same groups that were protected by existing equality legislation and now calls them `protected characteristics´:
- gender reassignment
- religion or belief
- sexual orientation
- marriage and civil partnership
- pregnancy and maternity
Types of Discrimination
Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have or because they associate with someone who has a protected characteristic
Indirect discrimination can occur when you have a condition, rule, policy or even a practice that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, ie that it is `a proportionate means of achieving a legitimate aim´. A legitimate aim might be any lawful decision you make in running your business or organisation, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including showing that you´ve looked at `less discriminatory´ alternatives to any decision you make.
Discrimination by association
This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.
This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act.
Harassment is "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". Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.
Third party harassment
The Equality Act makes you potentially liable for harassment of your employees by people (third parties) who are not employees of your company, such as customers or clients. You will only be liable when harassment has occurred on at least two previous occasions, you are aware that it has taken place, and have not taken reasonable steps to prevent it from happening again.
Further Information about the Protected Characteristics: Key Points under the Equality Act 2010
The Act protects people of all ages. However, there may be grounds to justify that different treatment because of age was not unlawful direct or indirect discrimination if you can demonstrate that it was a proportionate means of meeting a legitimate aim.
The Act has made it easier for a person to show that they are disabled and protected from disability discrimination. Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities, which would include things like using a telephone, reading a book or using public transport.
An employer is required to make reasonable adjustments when recruiting, selecting, inducting and promoting disabled employees. The Act puts a duty on the employer to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment (eg by providing assistive technologies to help visually impaired staff use computers effectively). The Act includes a new protection from discrimination arising from disability. This states that it is discrimination to treat a disabled person unfavourably because of something connected with their disability (eg a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it was a proportionate means of achieving a legitimate aim. Additionally, indirect discrimination now covers disabled people. This means that a job applicant or employee could claim that a particular rule or requirement you have in place disadvantages people with the same disability. Unless you could justify this, it would be unlawful. The Act also includes a new provision which makes it unlawful, except in certain circumstances, for employers to ask about a candidate´s health before offering them work.
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected – eg a woman who decides to live as a man, but does not undergo any medical procedures, would be covered.
It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured.
Marriage and civil partnership
The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.
Pregnancy and maternity
A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled. During this period, pregnancy and maternity discrimination cannot be treated as sex discrimination. You must not take into account an employee´s period of absence due to pregnancy-related illness when making a decision about her employment.
For the purposes of the Act `race´ includes colour, nationality and ethnic or national origins.
Religion or belief
In the Equality Act, religion includes any religion. It also includes no religion, in other words employees or jobseekers are protected if they do not follow a certain religion or have no religion at all. Additionally, a religion must have a clear structure and belief system. Belief means any religious or philosophical belief, including no belief. To be protected, a belief must satisfy various criteria, including that it is a weighty and substantial aspect of human life and behaviour. Denominations or sects within a religion can be considered a protected religion or religious belief. Discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.
Both men and women are protected under the Act.
The Act protects bisexual, gay, heterosexual and lesbian people.
Equality & Human Rights Commission (EHRC)
Established on 1 October 2007, the EHRC brought together the work of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. It will enforce equality legislation on gender, race, disability and health, age, religion, sexual orientation and transgender status and encourage compliance with the Human Rights Act 1998. It will campaign for social change and justice, has extensive legal powers and may take legal action on behalf of individuals.
For further information visit: http://www.equalityhumanrights.com
Legislation: Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
Fixed-term employees should not be treated less favourably than comparable permanent employees on the grounds that they are fixed-term employees, unless this is objectively justified in accordance with the legal framework.
For further information, see the University´s Guidelines & Criteria for the use of Fixed-term Contracts, the Redeployment Policy and the Redundancy Policy.
Employment of Ex-Offenders
Legislation: Rehabilitation of Offenders Act 1974
Under this Act an individual who has had a conviction for an offence may, with some exceptions, be rehabilitated and allowed to treat the conviction as if it had never occurred. A conviction will become 'spent' where the person has not, after a period of time, committed another serious offence. Employers may not, under the Act, ask prospective employees if they have 'spent' convictions during the recruitment process.
Legislation: Rehabilitation of Offenders 1974 (Exceptions Order) 1975
However there are exemptions to the Act and it does not apply to certain posts or professions including medical practitioners, dentists, nurses, and those concerned with providing elderly, sick or disabled people with health or social services.
Criminal Records Checks
Pre-employment criminal records checks will be required for certain posts, particularly those working (i) with vulnerable groups, such as the under 18s and people with mental health issues, and (ii) within clinical situations.
Further details on action required at http://www.shef.ac.uk/hr/recruitment/exo.html
Safeguarding Children and Vulnerable Adults
Legislation: The Safeguarding Vulnerable Groups Act 2006
This provides the legislative framework for a new vetting and barring scheme for people working with children and vulnerable adults. The Act establishes a central database of offenders in respect of people working, or applying to work, with children or vulnerable adults. Any person named on the list will be barred from working with children and/or vulnerable adults, or subject to monitoring.
Eligibility to Work in the UK
Legislation: the Immigration, Asylum and Nationality Act 2006
These provisions came into force on 29 February 2008 and aim to prevent illegal migrant working in the UK. Failure to comply with these regulations can result in the University becoming liable to pay a civil penalty of up to £10,000 for every illegal worker.
Further details on action required at
Legislation: The Data Protection Act 1998
The act defines certain types of information as "sensitive data" and restrictions are imposed on employers in relation to the collection and use of such data, including in the recruitment process eg seeking information on spent criminal records is restricted to certain posts.