When hiring, it’s obviously important to find the best person for the job. But you should also check you’re following the law on discrimination.

It’s usually against the law to discriminate against a job applicant based on any of the following, known as ‘protected characteristics’:

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

Indirect discrimination

Indirect discrimination is against the law. In the workplace, indirect discrimination means there are rules or arrangements that apply to everyone, but which in practice could be less fair to someone because of their sex, race or other protected characteristic.

For example, your business is recruiting for a head of sales. You only advertise the job internally. The potential applicants in the business are all men. You could, therefore, be discriminating indirectly against women.

Another example could be a job advert that states applicants must have spent a specific amount of time doing something (for example, 10 years working in retail).

By doing this, you could be discriminating indirectly against younger applicants. The advert should instead say that the applicant needs to meet a specific level of competence or knowledge. You could also include the main tasks and skills involved in the job.

When you can ask about protected characteristics

In some cases you can ask questions about disability, race or other protected characteristics. If you do this you must follow the law.

Common examples include asking a job applicant:

• if you need to make ‘reasonable adjustments’ for them, for example making sure that a disabled person coming for interview can access your office
• to complete an equality and diversity monitoring form, to help check your business follows the law

If you ask applicants to complete an equality monitoring form:

• anyone involved in interviewing or deciding to hire them must not have access to the information
• you should not ask applicants to enter their name or any other information that identifies who they are

Other questions about someone’s sex, race or other protected characteristics could be against the law.

If you’re not sure of the types of questions you can ask, you can contact us and we can help guide you.

When a requirement is crucial or helps a disadvantaged group

You can ask that job applicants have a certain protected characteristic (for example, sex or race), but only if:

• it’s crucial for the job (an ‘occupational requirement’)
• it helps a disadvantaged or under-represented group 

If you are considering doing this, it’s a good idea to get legal advice first.

It’s crucial for the job

You must be able to prove that the protected characteristic is crucial for someone to do the job effectively. 

For example:

• a care worker agency could ask for female applicants if the person being cared for is female and she said she would be uncomfortable receiving this type of care from a man
• the Catholic church can ask for a priest who is a Catholic

If an occupational requirement is justified and you advertise the job again later, you must check that it still applies.

It helps a disadvantaged or under-represented group

You can ask for a protected characteristic or use it when deciding to hire someone, as long as you can prove you’re doing this to help a disadvantaged or under-represented group in your business.

This is sometimes known as ‘positive action’. You must also be able to prove that the person is capable of doing the job.

Example

Your business has 10 salespeople who are all men, so you know women are under-represented.

When interviewing for another salesperson, you find that 2 applicants appear equally able to do the job. One is a man, the other is a woman.

In the end you decide to hire the woman. This is because she appears able to do the job and women are under-represented in your existing workforce.

By law, you must always see if there’s a less discriminatory way to make your workforce more diverse.

Trade union membership

It’s against the law to treat someone unfavourably based on whether they are, or are not, a trade union member.

Using information on someone’s social media profile when hiring

Avoid using information that’s on someone’s social media profile to decide whether you interview or hire them.

You might be breaking the law, particularly if either of the following points apply:

• they did not agree to you using the information in this way
• you looked at some applicants’ social media profiles, but not others

Example

While using Facebook you discover the profile of someone who has applied to you for a job as a personal assistant. You notice a picture of her with 2 toddlers in a pushchair and think she looks too young to be a mum.

You’ve now already started making a judgement – even if you did not intend to – about whether she’s the best applicant for the job.

If you then decide not to interview her and she discovered you’d seen her profile, she could argue that your decision discriminated against her because of her sex or age.

Information on jobs and business networking sites

When recruiting, you can usually use information that someone puts on a jobs website, or a business social networking site such as LinkedIn.

When posting information on these sites, users will be aware that the purpose is to show their work experience and professionalism. You must still make sure that you use this information in a way that does not discriminate.

This article has been adapted from the ACAS Website