Recruitment

• Advertise a job
• Take on staff
• Different types of worker
• Employment checks
• Staff documents and employment policies

Pay staff

• Pay and pensions
• National minimum wage

Manage people

• Holiday and other leave
• Working time
• Equality and diversity
• Maternity, paternity and adoption
• Employee engagement
• Staff motivation and performance
• Trade unions
• Redundancy, restructures and change

Develop staff

• Skills and development

Resolve conflict and staff leaving

• Problems at work
• Dismissals and staff leaving

Introduction

This guide takes you through the different stages of the recruitment process, from deciding what you need and how you are going to advertise, through to preparing for and carrying out the interview.

It includes information about:

• job descriptions and person specifications
• advertising your job
• employment agencies
• assessing applicants
• shortlisting and interviewing candidates

Writing a good job advert

A good job advertisement should:

• give enough information so that candidates can decide whether to apply – eg give the location, pay range, summary of role and length of contract
• state the skills and experience needed for the role
• not discriminate
• state if applicants should send a CV or complete an application form
• state a deadline for responses

Writing a person specification and job description

Preparing a job description is not a legal requirement but it will help you to decide what type of person you are looking for and to write the job advert.

A job description should include:

• the job title
• the main duties and purpose of the role
• information about the company and what it does
• the job location

If you are recruiting a manager, decide what their additional responsibilities will be and the specific skills they will need – eg line management or team leadership experience.

The person specification

It is not a legal requirement to include a person specification in your job advert. If you do decide to have a person specification, include the essential and desirable knowledge, experience and skills you would like the successful applicant to have.

 

Where and how to advertise your job

There are a range of options available to you when advertising a job. These include:

• newspapers and magazines
• online job and recruitment sites
• Jobcentre Plus
• employment agencies

Decide what’s appropriate for you

Think about who you want to read the advertisement, how long it should run for, how quickly you want a response and how much you can afford to pay.

Check the costs – internet sites can be cheaper than advertising in a newspaper – and time the advertisement carefully, eg avoid holiday periods.

Jobcentre Plus and government support

Jobcentre Plus provides services similar to an employment agency but at no direct cost to employers. You can advertise either online, by telephone or by email. See our guide on how to advertise a job and Jobcentre Plus Services.

Internship placements for graduates

Graduate Talent Pool is a government service that you can use to advertise internship vacancies to graduates.

Using employment agencies to find staff

Employment agencies can find you either temporary or permanent staff, depending on your needs.

It is recommended that you agree fees – including advertising costs – and terms before you appoint an employment agency to find candidates on your behalf.

What to tell the agency

• Name of your organisation and the work that it does.
• Dates that work will start and finish.
• Position and type of work.
• Location and terms and conditions of the job.
• Known risks to health and safety and preventative measures in place.
• Experience, training, qualifications and any authorisation needed by law or any professional body.
• Selection criteria that they should use.
• Whether your company name should be used in advertisements in the early phases of recruitment.

Advantages of using employment agencies

• You can take someone on for a set period of time.
• You can try out temporary workers before employing them permanently. However, you may need to pay a fee if a transfer from temporary to permanent takes place.
• There is no temporary to permanent transfer fee if you employ the worker on a permanent basis eight weeks after the temporary contract has ended or 14 weeks from the start of that contract.
• The agency will pay the temporary workers and take care of tax issues.
• You can often get a rebate for unsuitable candidates or be provided with another candidate.

Disadvantages of using employment agencies

• You may have to pay an agency up to 30 per cent of the employee’s annual salary (or equivalent for temporary workers).
• Temporary workers who work on an obvious ongoing basis have certain employment rights and may be regarded as your employees. This may be important in tribunal cases.

How to complain about an agency

Employment agencies must comply with the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003. If you are unhappy with your agency, you can make a complaint by calling the Pay and Work Rights Helpline on Tel 0800 917 2368.

 

The application process – CVs and application forms

There are two main options for inviting applications to your vacancy:

• providing an application form for applicants to complete and return to you
• asking applicants to send a copy of their CV and a covering letter explaining why they are suitable for the job

Advantages of application forms

• You can ask for the exact information you need to know.
• It is easy to compare the skills and experience of different applicants.
• You can use the same form for future vacancies.

Disadvantages of application forms

• They are time-consuming and can be tricky to design.
• The cost involved in producing and sending them out to applicants.
• Lengthy application forms can be off-putting.

Information to include on an application form

• Job applied for.
• Name, address, telephone numbers and email address.
• Qualifications.
• Work experience.
• Relevant skills or experience.
• Names and addresses of referees.
• If the applicant has a criminal record.
• If the applicant has the right to work in the UK.

You must avoid asking discriminatory questions. See our guide on how to prevent discrimination and value diversity.

Advantages of requesting CVs

• There is no need to produce and send out a form to every applicant.
• You can tell something about candidates by the way they present their CV.
• A covering letter can give you a good idea of their suitability for the job.
• There are no costs involved for you.

Disadvantages of requesting CVs

• It is harder to compare the skills and experience of different candidates.
• Gaps in education or work can be hidden more easily.

Shortlisting and inviting candidates to interview

When you have the replies to your advertisement:

• match applications against your job description and person specification
• eliminate applicants who do not have the basic requirements for the job
• draw up a shortlist of candidates to interview
• consider notifying candidates who you will not be inviting for interview

How do I make a shortlist?

• Draw up a table listing each candidate against the essential requirements of the job. This will be your shortlist.
• Include only the number of applicants you will have time to interview – usually no more than three to four people a day. Allow time for preparation and discussion before and after the interview.
• If there are too many possible candidates, look at how many meet both the essential and desirable criteria.
• Don’t discriminate against applicants on the grounds of sex, race, age or disability, sexual orientation, religion or belief, pregnancy and maternity, marriage and civil partnership and gender reassignment.
• Get more than one person to compile the shortlist to avoid possible bias.

Inviting candidates to interview

Invite the most suitable candidates to interview by letter, telephone or email. If you do it by telephone, you are advised to confirm arrangements in writing.

You should say:

• when and where the interview will be
• what documents the candidate should bring
• who the candidate should ask for on arrival
• the names and job titles of the people conducting the interview
• if there will be a test or a presentation

You should also ask candidates to tell you if they have any special needs that you will need to cater for.

 

Preparing for the interview

The more preparation you do for the interview, the easier it will be for both you and the candidate.

Plan the questions

• Plan questions that give the candidate the chance to talk about their experience.
• Ask about any information in their application that is not clear, or that you would just like to know more about.
• Know the job description and person specification well so that your questions help you compare candidates.
• If two or more people are interviewing, decide who will deal with what topics.
• Think about what information candidates may want about the job and your organisation.

Prepare questions that need more than a ‘yes’ or ‘no’ answer. For example:

• Tell us why you are interested in this job.
• What were/are your main responsibilities in your previous/current job?
• Why did/do you want to leave your previous/current job?
• Where do you see yourself in five years’ time?
• Looking back at your career, what would you have done differently?

Making arrangements for the interview

• Make sure that the interview room is properly prepared.
• Find out if a candidate has any special requirements before they arrive.
• Make sure there will be no interruptions.
• Brief other members of staff, such as receptionists, to expect the candidate.
• Allow enough time for the interview so you don’t have to rush.

Subjects covered in this guide

• Introduction
• Writing a good job advert
• Writing a person specification and job description
• Where and how to advertise your job
• Using employment agencies to find staff
• The application process – CVs and application forms
• Shortlisting and inviting candidates to interview
• Preparing for the interview
• Carrying out the interview
• Using other selection methods

Carrying out the interview

Prepare your questions in advance of the interview. Your aim is to get as much quality information from the candidate as possible to assess if they are right for the job.

• Welcome the candidate.
• Introduce yourself and any other people present.
• Explain the structure of the interview.
• Outline where the job role fits within the company.
• Ask questions and allow the candidate time to think and speak.
• Keep control of the interview and help the candidate focus on the information you need.
• Ask the candidate if they have any questions at the end of the interview.
• Explain the next stage in the recruitment process and give an idea of the timescales.
• Thank the candidate for their time.

Keeping records of the process

• Write notes about the interview as soon as possible afterwards.
• Only record what has been said in the interview and how the selection decision was made, not your beliefs or thoughts about the candidate.
• Candidates who later make a complaint to an employment tribunal have the right to ask for copies of any notes made during the interview. You may need them for defending any possible discrimination case relating to the process.

Only record or keep personal data after an interview if it is necessary and relevant to the recruitment process, or if there is a possibility of a discrimination challenge. Data that is kept should be securely stored.

 

Using other selection methods

As well as interviewing, there are other ways to select the best candidate. Options include:

• practical tests
• psychometric tests
• assessment centres

Tests can be done before or at the time of the interview, but should not be used as the sole method of selection. Keep in mind that such tests could also be unlawful if they discriminate against candidates of a particular race, sex or age or those who have a disability.

Before using any kind of test, think about how relevant it is to the job and measure the benefits against the costs of organising them.

Practical tests

Practical tests are used to gauge ability and are most useful for:

• manual jobs – eg to test trade skills
• secretarial jobs – eg to test word processing skills
• those working in call-centres or in telesales – eg to test telephone skills

Psychometric tests

Psychometric tests are more likely to be used when hiring managers and can be useful when choosing a candidate from a group of people who do not have easily comparable skills or experience. Psychometric tests can be used to measure intelligence, personality or aptitude for specific tasks, such as:

• reasoning and problem solving
• decision making
• interpersonal skills
• confidence

You should bear in mind that these tests:

• are not always a good indicator of future performance
• should not be used unless there is a proven need and a suitably qualified person to administer them
• often require a fee when you use them

Assessment centres

These are generally used by larger organisations when hiring senior staff or graduates. Individual and group exercises take place, sometimes over a few days, often including an interview, psychometric test and group discussion. Tasks, written exercises and presentations are also commonly used.

Introduction

 

The equality legislation sets out the grounds for unlawful discrimination, helps employers understand how to recruit and treat their staff fairly and promotes diversity in the workplace.

Unlawful discrimination discredits you as a business and can be very costly should an individual succeed in an unlawful discrimination claim against you at an employment tribunal.

This guide tells you what you must know about the equality legislation. It also outlines how you can monitor and promote diversity in the workplace.

Common areas of equality law

It is unlawful to discriminate on the grounds of:

• sex, including pregnancy and maternity
• marital status, including civil partnership status
• gender reassignment
• disability
• race
• age
• sexual orientation
• religion/belief or lack of any religion/belief
• trade union membership or non-membership
• status as a fixed-term or part-time worker

The anti-discrimination legislation applies to:

• job applicants
• all employers in the private and public sectors, vocational training providers, trade unions, professional organisations, employer organisations, and trustees and managers of occupational pension schemes
• employees, other workers – eg agency and casual workers – office holders, partners of firms and others
• those engaged by a business in a contract for services, eg contractors and the self-employed

The types of discrimination

There are generally four types of discrimination:

• direct discrimination – treating somebody less favourably on the grounds of their sex, race, etc
• indirect discrimination – applying a rule which is applied equally to all individuals but which in practice disadvantages one sex, race, etc, and cannot be justified
• harassment – see our guide on bullying and harassment
• victimisation – treating someone unfairly because, for example, they plan to raise a discrimination-related grievance or they support someone in raising a grievance

The types of disability discrimination are slightly different – see the page in this guide on discrimination against disabled people.

Note that direct discrimination and harassment can include:

• associative discrimination and harassment, eg where someone discriminates against a person because that person’s brother is disabled
• discrimination and harassment by perception, eg where someone discriminates against a person because they believe that the person is gay – even if they are not

Justifying discrimination

It is not possible to justify direct discrimination (except for direct age discrimination – see the page in this guide onage discrimination), harassment and victimisation.

However, it may be possible to justify indirect discrimination in certain circumstances. For example, if an employer has a general rule that puts women or people with no religious belief at a disadvantage but the reason for applying that rule genuinely helps the employer to meet a legitimate aim, then indirect discrimination may be justified.

Where discrimination can occur

The equality legislation affects all areas of employment including:

• recruitment
• terms and conditions
• promotions and transfers
• the provision of training
• the provision of benefits
• dismissal
• occupational pensions

Discrimination can also occur after employment, eg a former employee can bring a discrimination claim after they have left if they get an unfavourable reference because they threatened to bring a discrimination claim.

Employment tribunal claims and discrimination

Any claim to an employment tribunal will generally have to be brought by the employee concerned within three months of the alleged discriminatory act occurring.

However, the tribunal would expect them to raise a formal grievance with you before bringing the claim, see our guide on managing conflict. If they failed to do so, it may reduce the amount of any compensation it may award to the employee by up to 25 per cent.

See our guides on handling grievances andemployment tribunal claims – the basics.

There are no length-of-service or age requirements in bringing a claim and claimants do not need to have left your employment.

For their claim to succeed, the claimant must prove the existence of facts from which the tribunal could conclude that you have committed an act of unlawful discrimination.

If the claimant is able to do this, you must prove to the tribunal that you did not commit the unlawful act.

If an employment tribunal does in fact find that unlawful discrimination has occurred, penalties can be high, since there is no cap on compensation.

It’s very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took steps to try and prevent such action occurring – see the pages in this guide on monitoring equality and diversity and promoting equality and diversity.

 

Discrimination during the recruitment process

It is important to avoid discrimination during the recruitment process. This not only is a legal requirement, but also gives you the best chance of getting the right person for the job.

Remember that job applicants – ie people you don’t actually employ – might be able to make an employment tribunal claim against you if they believe you didn’t select them for a job because you discriminated against them unlawfully.

Note that businesses in Northern Ireland with more than ten employees must conduct monitoring during recruitment.

Job descriptions and person specification

When writing the job description and person specification, you should state clearly what tasks the person will have to do and what skills they will need.

The specification should not have any requirements that are not directly related to the job. For example, for a position as a fork-lift truck driver, the job specification should not state that the successful candidate needs good written English as this is probably not essential – or even desirable – for the job. However, in an editorial or administrative role this can be specified.

Job advertisements

It is unlawful for a job advertisement to specify that the applicant must be of a particular gender, race, etc – unless being of that gender, race, etc is an occupational requirement.

It is unlawful to publish job advertisements that imply that any candidate’s success depends to any extent on them not having, or not having had, a disability, or indicate the employer’s reluctance to make reasonable adjustments. In addition, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.

However, note that you can treat disabled people more favourably by advertising a job as being open only to disabled applicants.

To avoid age discrimination it is advisable not to use such phrases as “young and dynamic”, “would suit someone who has just qualified” or “minimum of ten years’ experience” as these may lead to age bias.

See the page in this guide on age discrimination.

Occupational requirements

In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is an occupational requirement for the job.

For example, it may be possible to state that being:

• of Italian origin is a requirement for a job as a waiter in an Italian restaurant so that the restaurant has an ‘authentic’ Italian atmosphere
• heterosexual is a requirement for a job with a religious organisation because the religion’s believers object to gay and lesbian practices

Questions about disability and health

The Equality Act 2010 limits when you can make enquiries about health or disability when recruiting. These restrictions apply prior to the point where you:

• make a conditional or unconditional job offer to anyone, or
• include them in a pool of successful candidates to be offered a job when a vacancy arises.

Before that point you should only ask about a candidate’s disability or health if you need to find out whether:

• they will be able to take part  in some form of selection test
• you will need to make a reasonable adjustment to the interview or test for disabled applicants
• they will be able to do something that is intrinsic for the job in question

You can also ask about health or disability if:

• you want to monitor the diversity of your applicants
• you want to take positive action to enable you to recruit more disabled workers
• the job in question is one for which having a particular disability is an occupational requirement and you want to establish that the person has that disability

If you ask a question that is not permitted

Asking a question about health or disability which is not permitted is not in itself discriminatory. However, the Equality and Human Rights Commission can take action against you if you make enquiries that are not permitted.

Also, if a candidate later makes a claim of direct discrimination because they believe that you used their reply to discriminate against them  it will be for you to show the Employment Tribunal that this is not the case.

Application forms

If you use application forms, you should only ask for the minimum of personal details.

However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be required to attend an interview or other selection process.

If the applicant’s response reveals or suggests that they are disabled, you should take reasonable steps to confirm whether or not they are disabled under the Equality Act 2010. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests.

If a disabled applicant asks for an application form in an accessible format you should comply with the request if it is reasonable to do so.

It is not unlawful to ask candidates for their ages, ethnicities, etc on application forms. However, in relation to disability and health, you need to avoid asking questions that are not permitted.

It is good practice to save questions about personal characteristics for a diversity monitoring form that you can separate from the main application.

Interviewing

When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership or plans to have children. Also, there are restrictions on questions that may be asked about disability or health.

If a candidate has informed you in advance that they are disabled you should ask them if there are any reasonable adjustments you might need to make to enable them to attend and participate in the interview.

You must only ask health- or disability-related questions that are relevant to establishing:

• The person’s ability to carry out functions that are intrinsic to the job. For example, if telephone work is a significant and essential element of the job, you can ask whether the candidate has an impairment that affects their ability to use the telephone.
• Whether the person has a disability when you are intending to exercise positive action in recruitment of disabled people. For example, where you intend to increase the proportion of disabled employees you employ.
• Whether the person has a particular disability, where having that disability is an essential requirement of the job. For example, where the job is for a counsellor for people with a particular disability, and having first-hand experience of that disability is essential to the job.

Tests

You must make sure that tests for job applicants are not unlawfully discriminatory. For example, a written English test would discriminate against those whose first language is not English – although you could justify this if having good written English was necessary for the job.

You may have to make reasonable adjustments to adjust a test for a disabled applicant if they would otherwise be substantially disadvantaged compared to a non-disabled person, eg by giving them more time to complete it.

Record-keeping

You must always be able to justify your decision to recruit a particular person. Therefore, you should document the recruitment process as much as possible.

This will help you provide evidence to an employment tribunal if you are faced with a claim of unlawful discrimination.

Sex, maternity and pregnancy discrimination

As well as gender itself, the equality legislation covers discrimination on the grounds of pregnancy and maternity.

Direct sex discrimination would occur if, for example, an employer dismissed a woman because she was pregnant or asked to take maternity leave.

Indirect discrimination would occur if, for example, an employer stated that a job could only be done by someone willing to spend long periods of time away from home. This discriminates against women who generally have greater childcare responsibilities than men. However, this discrimination could be justified if, for example, the job was for a salesperson who had to go abroad to meet customers face to face.

Note that it may be possible to state that a job holder must be male or female where being of that sex is an occupational requirement – see the page in this guide on discrimination during the recruitment process.

The law makes sexual harassment – and harassment related to sex – explicitly unlawful in employment or vocational training. Sexual harassment can include insensitive jokes, displays of sexually explicit material, sexual innuendos or lewd comments or gestures. It also includes the circulation of lewd emails, even if this is not actually sent to the person being harassed.

For more information, see our guide on bullying and harassment.

For more on these types of discrimination and discrimination law in general, see the page in this guide on the common areas of discrimination law.

 

Equal pay and conditions

Women and men are entitled to equal pay for work of equal value.

‘Pay’ includes not only wages/salary but also contractual terms and conditions.

Therefore, even if you pay men and women the same basic pay for the same job, their pay may still be unequal if other benefits, eg a company car and private healthcare, are different for men and women.

Work may be different from that of a colleague of the opposite sex but it can be considered of equal value if it is similar or the same in terms of the demands of the job.

Employees are entitled to request key information from you by asking directly or they can fill in a special questions form. You are not obliged to respond but, if you wish to, you can use the special answers form.

Find the Equality Act questions and answers forms on the Government Equalities Office website- Opens in a new window.

If you choose not to respond, it can count against you should the matter reach an employment tribunal, as can giving an evasive reply.

You may be able justify differences in pay as long as you can show that gender was not a factor, eg you could pay more to employees who:

• work in Greater London where the cost of living is higher
• you want to retain as you would find it difficult to replace them

Gender reassignment discrimination

It’s unlawful to discriminate against a person on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment, with limited exceptions in recruitment.

It’s also unlawful to treat such a person less favourably than a person who is off sick for another reason and similar period.

A person is protected from gender reassignment discrimination from the date they tell a medical practitioner that they want to undergo gender reassignment.

Before any surgery, someone undergoing gender reassignment (a ‘trans person’) needs to live as a member of the opposite sex. Inevitably this will include using gender-appropriate single-sex toilets.

You will therefore need to discuss with the individual when they wish to change from using one set of facilities to the other. This will probably be during the ‘social gender’ transition, when they present as members of the adopted sex even though they don’t have any of the physical characteristics of that sex.

Other employees may object to sharing facilities in these circumstances. While the trans person must also take account of colleagues’ and clients’ sensibilities, you should remind objectors that a failure to treat others with dignity and respect could be seen as a breach of your equality policy and could amount to a disciplinary issue.

Once a trans person’s gender reassignment is complete, they can register their change of gender via a gender recognition certificate (GRC). Once they have a GRC, they will be issued with a new birth certificate in the acquired gender. This would mean that you would have to treat a male-to-female trans person with a GRC as a woman and, for example, change your personnel records to reflect this.

A person who has undergone gender reassignment while already married must divorce to gain a GRC. They and their partner will then be able to register a civil partnership to regain the legal status of their relationship.

 

Age discrimination

It is generally unlawful for an employer to discriminate on the grounds of age – ie to treat individuals of any age less favourably than others.

There are limited circumstances when it can be lawful – for example:

• if there is a Genuine Occupational Requirement – ie if you are producing a play which has parts for older or younger characters
• if there are legal reasons – ie where people must be at least 18 to serve alcohol
• if there is an objective justification – ie the employer must show real evidence that they are pursuing a legitimate aim and that the age restriction is a proportionate means of achieving that aim

Exceptions are rare and any should be considered carefully. Unjustified discrimination can be challenged and there is no limit on how much an employment tribunal can award.

Some examples of age discrimination

Direct discrimination would occur if, for example, an employer refused to employ people under the age of 30, believing them to be unreliable; or advertised for a ‘young, dynamic person’ as this would potentially exclude older people from applying.

Indirect discrimination would occur if, for example, an employer only advertised jobs in magazines aimed at young people – this may discriminate against older people as they are less likely to subscribe to the magazine; or introduced a benefit only for employees with more than ten years’ service – fewer younger employees are likely to have enough service to qualify. However, it might be possible to justify this type of discrimination if evidence showed it encouraged staff retention.

Removal of the Default Retirement Age (DRA)

The government is phasing out the DRA of 65. From October 1st 2011, employers will no longer be able to force employees to retire just because they reach the arbitrary age of 65. This means that most people will be able to retire at a time which is right for them. As above, without the DRA employers can only set retirement ages where it can be objectively justified in their particular circumstances – but this is open to challenge at tribunal.

For more information, see our guide on when an employee retires.

Note that it may be possible to state that a job holder must be of a certain age where being of that age is an occupational requirement – see the page in this guide ondiscrimination during the recruitment process.

For more information on these and other forms of discrimination, see the page in this guide on the common areas of discrimination law.

Avoiding age discrimination

You should check that your recruitment process is non-discriminatory, eg aim to place advertisements in publications read by a range of age groups, and avoid using terms which imply a particular age group, such as ‘mature’, ‘enthusiastic’, ‘highly experienced’ or ‘recent graduate’. See our guide on employing older workers.

You must also make sure that your redundancy procedures are based on business needs rather than age, eg it could be discriminatory to select employees for redundancy solely on the basis of ‘last in, first out’.

 

Discrimination against disabled people or because of disability

Under the Equality Act 2010, it amounts to unlawful disability discrimination if an employer:

• Treats a disabled employee or job applicant less favourably than others because of their disability – eg an employer refuses to employ someone even though they are suitable for the job, simply because they are a wheelchair user. This is direct disability discrimination, which can never be justified.
• Has a policy or procedure which, although it applies to all individuals, puts those who share the same disability at a particular disadvantage when compared with those who don’t share it. This is indirect discrimination.
• Treats an employee/job applicant unfairly because of something arising from their disability – eg an employer dismisses an employee because of their long-term absence caused by having an arm amputated following a car accident. This is referred to as discrimination arising from disability. However, the employer may be able to justify this type of discrimination in certain circumstances. This type of discrimination cannot arise if the employer didn’t know and couldn’t reasonably have been expected to know that the person had the disability.
• Fails to comply with its duty to make a reasonable adjustment for a disabled employee/ job applicant. This type of discrimination cannot be justified. However, the employer is not required to make reasonable adjustments if the employer doesn’t know – or could not reasonably be expected to know – that the employee/applicant is disabled and is likely to be placed at a substantial disadvantage compared with non-disabled people. However, the employer must do all it can reasonably be expected to do to find out whether this is the case.

Victimisation is also unlawful discrimination under the Act, ie it is unlawful for an employer to treat an employee (the victim – whether a disabled or non-disabled person) unfairly because they have, or the employer believes they have:

• brought proceedings, or given evidence or information in connection with proceedings brought under the Act
• done anything else under the Act
• alleged someone has contravened the Act

For example, a disabled employee alleges discrimination because his employer refuses to promote him. A colleague gives evidence at the tribunal on the disabled employee’s behalf and, as a result, the employer makes the colleague redundant. This amounts to unlawful victimisation (as well as unfair dismissal).

The law also makes it unlawful to:

• harass someone in relation to disability
• discriminate against someone on the grounds of their perceived disability, even if that perception is wrong
• discriminate against a person because they associate with someone who is disabled

See the page in this guide on common areas of discrimination law.

What counts as a disability?

In general, the Equality Act 2010 considers someone to be disabled for the purposes of the Act 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.

However there are special rules that apply to people with certain impairments like progressive conditions. Also, some people are deemed to be disabled people, for example those with HIV, cancer and some visual impairments.

In addition, a mental illness does not have to be ‘clinically well recognised’ before it is judged to be a mental impairment for the purposes of the Act.

Certain conditions are not regarded as impairments for the purposes of the Act, eg drug or alcohol addiction or a tendency to start fires, steal or physically abuse others.

For more on discrimination law in general, see the page in this guide on the common areas of discrimination law.

Reasonable adjustments

Employers have a legal duty to make reasonable adjustments to any provision, criterion or practice, or to physical features of their premises, to enable a disabled person to work or continue working if they would otherwise be at a substantial disadvantage compared with non-disabled workers. Reasonable adjustments often involve little or no cost to your business. See our guide on how to provide access and facilities for disabled people.

 

Discrimination on the grounds of race

It’s unlawful for an employer to discriminate against someone on the grounds of:

• race
• national origin
• ethnic origin
• colour
• nationality, including citizenship

Segregation of employees on the grounds of race is also unlawful.

Direct discrimination would occur if, for example, an employer refused to employ someone because they were not white and English.

Indirect discrimination would occur if, for example, an employer refused to employ people who could not write in English. This could only be justified if written English was necessary for the job.

Note that you may be able to state in a person specification that the job holder must be of a particular race, national origin, etc where being of that race, national origin etc is an occupational requirement – see the page in this guide ondiscrimination during the recruitment process.

For more on these types of discrimination and discrimination law in general, see the page in this guide on the common areas of discrimination law.

 

Discrimination on the grounds of religion or belief

It is unlawful for an employer to discriminate against someone on the grounds of:

• religion – this means any religion
• belief – this covers any religious or philosophical belief
• lack of any religion
• lack of any belief

Neither religion nor belief is defined by law. However, belief could cover things like atheism and humanism.

Direct discrimination would occur if, for example, an employer paid Christians more than non-Christians.

Indirect discrimination would occur if a butcher stated that job applicants must be willing to handle pork and pork products. This would indirectly discriminate against Muslims and Jews, who regard pork meat as unclean. However, this could be justified if the butcher could show that:

• this requirement was absolutely necessary
• there was no way that the job holder could avoid handling pork

Note that you may be able to state that a job holder must be of a particular religion/belief where being of that religion/belief is an occupational requirement – see the page in this guide on discrimination during the recruitment process.

 

Discrimination on the grounds of sexual orientation

It is unlawful to discriminate against someone on the grounds of sexual orientation towards:

• people of the same sex, ie gays and lesbians
• the opposite sex, ie heterosexuals
• the same and opposite sex, ie bisexuals

Direct discrimination would occur if, for example, an employer refused to employ a heterosexual woman whom the employer believed was bisexual.

Indirect discrimination would occur if, for example, an employer only placed a job advertisement in newspapers and magazines aimed at gays and/or lesbians as heterosexuals tend not to read such publications.

Note that you may be able to state that a job holder must be of a particular sexual orientation where being of that sexual orientation is an occupational requirement – see the page in this guide on discrimination during the recruitment process.

For more on these types of discrimination and discrimination law in general, see the page in this guide on the common areas of discrimination law.

 

Monitoring equality and diversity

You should monitor equality and diversity to examine if your equality policy is working effectively.

If you find that it isn’t working, ie you find that your workforce is not as diverse as it should be, you will need to find out why and take action to improve the effectiveness of the policy.

For example, if you find that non-white people are underrepresented in your workforce, you could take positive action, eg include text in job advertisements encouraging members of minority ethnic groups to apply – see the page in this guide on promoting equality and diversity.

What is monitoring?

Monitoring involves gathering information on the diversity of your potential recruits or existing employees. This data can be compared and analysed against data about other groups of employees in your company, jobseekers in your local community and the national labour market.

It is unlikely that you will find exactly the same proportion of men and women or other groups. Monitoring is about looking for significant differences between groups or identifying trends over periods of time and then finding out why.

Getting employees involved in monitoring

To get the best out of the process, you may need to explain to some staff the benefits of monitoring.

 

For example, some employees may feel uncomfortable about filling in monitoring forms. If so:

• reassure them that you will treat any information they give as confidential
• explain to them that you are carrying out the monitoring process to make your equality policy a reality
• point out that a successful policy is good for business

It may help if you involve workplace representatives in explaining what monitoring is for.

If you do not have any representatives in your organisation, consider setting up a working group. This can act as a point of contact for employees if they want to raise any concerns.

You will also need to:

• encourage external job applicants to complete the monitoring form
• reassure staff that all information collected will remain strictly confidential
• select a senior manager or member of staff to champion the monitoring process
• decide on the best way to communicate your message, eg via magazine articles or a dedicated intranet site

Make sure that each question has an option of ‘prefer not to say’. However, do not make completion of a monitoring form compulsory or in any way ‘punish’ those who refuse to cooperate.

The type of information you should collect

You should – at the very least – collect information based around the six main strands of equality legislation:

• age
• race
• gender
• disability
• religion or belief
• sexual orientation

See our table on the legal position regarding monitoring and good-practice pointers- Opens in a new window.

What you should attempt to find out

It is good practice to monitor your employees at every stage of their employment – from recruitment right through to when they leave.

This means finding out:

• who applies to work for you
• who you interview and who you finally recruit
• who you promote
• who you train and in what work areas
• who raises grievances at work
• who you discipline and what for
• who is absent or sick and for what reasons
• who you dismiss
• who leaves the organisation

 

How to get the monitoring data

Ask job applicants for monitoring data on a sheet that can be detached from the application form. That way the information can be kept separate from the selection process.

Make it clear that the information will only be used for equality monitoring and not for short-listing.

All applicants must be treated fairly at the point of selection. Choosing someone because they are – or are not – of a particular sex, age, ethnicity, etc is unlawful discrimination.

However, you can treat disabled people more favourably by actively choosing to select a disabled candidate for a job even though they may not be the best qualified.

See the page in this guide on discrimination during the recruitment process.

As for your existing workforce, you could also ask them to fill out a monitoring form.

However, smaller businesses may find it difficult to ensure confidentiality or an issue may be too sensitive. In these circumstances, you could use a staff-attitude or customer-satisfaction survey.

Understanding and interpreting monitoring data

Monitoring is about making comparisons between groups of employees or job applicants and, if there is a real difference, finding out why.

Bear in mind that any difference in itself is not necessarily bad – indeed it would be very surprising if the number of job applicants was split 50-50 – for example, between men and women.

A widely used rule of thumb to assess the difference in recruitment rates between groups, eg between men and women or white British and non-white British people, is known as the ‘four-fifths rule’.

The four-fifths rule suggests that if any group is less than four-fifths of the rate of the group with the higher or highest success rate, it may indicate bias.

The four-fifths rule can be used at each stage of a selection process to identify any particular difference.

It is not intended to be an absolute measure, but is a simple and easy way to measure whether the differences in rates are worth investigating further.

Owing to generally smaller sample sizes, ie fewer job applicants and fewer employees, smaller businesses may find it more practical to use their judgement rather than relying on this calculation.

 

Promoting equality and diversity

In order to promote equality and diversity in the workplace, you should have a written equality and diversity policy.

You may wish to consider carrying out a pay review to see if there are any imbalances to assure yourself that your organisation is not discriminating.

Equality and diversity policies

It’s very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took steps to try and prevent such action occurring.

One of the main ways of doing this is to have an equality and diversity policy, backed up by action plan to promote the policy and ensure that it is understood and followed across the business.

The policy should set out your commitment to promote equality and diversity in areas such as recruitment, training and pay to tackle discrimination.

It should also:

• help your employees understand what you expect of them, eg to treat their colleagues and clients with dignity and respect
• set out your employees’ legal rights and obligations

For more information, see our guide on how to set up employment policies for your business.

The Acas Model Workplace

The Acas Model Workplace tool can help you assess the effectiveness of your equality and diversity practices and give you guidance on setting up and maintaining good employment relations. You can find out about the Acas Model Workplace on the Acas website- Opens in a new window.

Equal pay reviews

Many companies have instituted equal pay reviews which aim to ensure that all staff enjoy the same pay and conditions while doing similar types of work.

The reviews can help avoid ‘glass ceiling’ working cultures, where certain types of people don’t get promoted above specific levels. These reviews can also help make sure that an equal pay policy is working.

Equal pay reviews may be carried out by someone within the company trained to deal with equality issues or they may be conducted by an outside team of specialists.

Find guidance on how to check equal pay on the Equality and Human Rights Commission website- Opens in a new window.

You can also see our guide on how to set the right pay rates.

Positive action during recruitment

If your monitoring reveals imbalances in staff numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement must still state that the final recruitment decision will be based solely on merit.

When faced with two equally qualified job candidates, you can – in certain circumstances – use positive action when choosing which one to actually recruit. See the page in this guide on discrimination when deciding who to employ.

Positive action and promotions

You can promote an employee who has a protected characteristic if they are of equal merit to another employee under consideration and you reasonably think that people with that characteristic are underrepresented in the workforce, or suffer a disadvantage connected to that characteristic.

However, you will:

• only be able to take such positive action where it is a proportionate way of addressing the underrepresentation or disadvantage
• not be allowed to choose a less suitable employee just because they have a protected characteristic that is underrepresented or disadvantaged

The relevant protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race, ethnic or national origin, colour and nationality
• religion/belief or lack of any religion/belief
• sex
• sexual orientation

Positive action and training

You can give members of, for example, the minority sex or non-white people access to training for particular work.

The provision of training for specific groups can help them to:

• develop interview techniques
• better complete application forms
• develop confidence or assertiveness
• develop management skills to help them to apply for promotion
• develop skills to the required level to compete for jobs and promotion opportunities

You could also provide:

• training to, for example, older workers who have out-of-date skills
• careers counselling and guidance for those wishing to return to work after a long break, eg women who have not worked for a long time owing to their childcare responsibilities

However, positive discrimination – eg deliberately recruiting only non-white people to reach a quota – is unlawful.

Staff motivation and performance