Recruitment procedures — employment law

Most claims for dis­crim­i­na­tion in recruit­ment have no max­i­mum lim­it. While dis­crim­i­na­tion claims remain uncapped, recent updates to employ­ment tri­bunal com­pen­sa­tion lim­its should be not­ed. As of April 6, 2025, the max­i­mum com­pen­sato­ry award for unfair dis­missal is £118,223, and the max­i­mum basic award is £21,570.

Can your busi­ness afford com­pen­sa­tion because you made a sim­ple mis­take?

How do you make sure you don’t break the law?

We set out below the main prin­ci­ples involved in the recruit­ment of employ­ees. We have writ­ten this fact­sheet in an acces­si­ble and under­stand­able way but some of the issues may be very com­pli­cat­ed.

Pro­fes­sion­al advice should be sought before any action is tak­en.

Good recruitment procedures

Employ­ers recruit­ing staff can make sim­ple but very expen­sive mis­takes in all sorts of ways when try­ing to take on new staff. Sound recruit­ment pro­ce­dures help avoid mis­takes, as well as ensure that your recruit­ment process improves and you take on bet­ter staff as well.

Where can things go wrong?

You can eas­i­ly make mis­takes at var­i­ous stages in the recruit­ment process that would prob­a­bly mean you would lose your case at an Employ­ment Tri­bunal.

These stages include:

• defin­ing the job itself or iden­ti­fy­ing the per­son required
• attract­ing can­di­dates by adver­tis­ing
• how you assess the can­di­dates you see
• mak­ing the actu­al selec­tion deci­sion
• the terms of employ­ment that you offer

The dan­ger, quite apart from the cost of recruit­ing the wrong per­son and then hav­ing to get rid of them and recruit again, is that some­one whom you have turned down at some point in the process may com­plain to an Employ­ment Tri­bunal that you dis­crim­i­nat­ed against them in accor­dance with the Equal­i­ty Act 2010. If the Tri­bunal finds the claim to be valid then com­pen­sa­tion can be award­ed not just for actu­al loss but also to com­pen­sate for pro­ject­ed future loss and what is known as ‘injury to feel­ings’.

Equality Act 2010

The Equal­i­ty Act 2010 replaces all pre­vi­ous equal­i­ty leg­is­la­tion, and cov­ers age, dis­abil­i­ty, gen­der reas­sign­ment, race, reli­gion or belief, sex, sex­u­al ori­en­ta­tion, mar­riage and civ­il part­ner­ship and preg­nan­cy and mater­ni­ty. These are now called ‘pro­tect­ed char­ac­ter­is­tics’.

Discrimination

Dis­crim­i­na­tion occurs when some­one is treat­ed less favourably than anoth­er per­son because of their pro­tec­tive char­ac­ter­is­tic. There are four def­i­n­i­tions of dis­crim­i­na­tion:

Direct Dis­crim­i­na­tion:

Treat­ing some­one less favourably than anoth­er per­son because of their pro­tec­tive char­ac­ter­is­tic

Indi­rect Dis­crim­i­na­tion:

Hav­ing a con­di­tion, rule, pol­i­cy or prac­tice in your com­pa­ny that applies to every­one but dis­ad­van­tages peo­ple with a pro­tec­tive char­ac­ter­is­tic

Asso­cia­tive Dis­crim­i­na­tion:

Direct­ly dis­crim­i­nat­ing against some­one because they asso­ciate with anoth­er per­son who pos­sess­es a pro­tect­ed char­ac­ter­is­tic

Per­cep­tive Dis­crim­i­na­tion:

Direct­ly dis­crim­i­nat­ing against some­one because oth­ers think they pos­sess a par­tic­u­lar pro­tect­ed char­ac­ter­is­tic

Acts of dis­crim­i­na­tion would involve either estab­lish­ing dif­fer­ent, unjus­ti­fi­able and there­fore dis­crim­i­na­to­ry recruit­ment cri­te­ria or delib­er­ate­ly exclud­ing cer­tain cat­e­gories, for exam­ple, ‘men only may apply’. Indi­rect Dis­crim­i­na­tion is not as obvi­ous (and indeed employ­ers can find them­selves com­mit­ting indi­rect dis­crim­i­na­tion quite unin­ten­tion­al­ly and inno­cent­ly).

Exam­ples of indi­rect dis­crim­i­na­tion would include:

• set­ting recruit­ment cri­te­ria which are not actu­al­ly jus­ti­fied by the job or job descrip­tion but which have the effect of dis­crim­i­nat­ing against cer­tain groups of peo­ple (e.g. requir­ing exam qual­i­fi­ca­tions sug­gest­ing skills which are not actu­al­ly need­ed by the job and which could dis­crim­i­nate against indi­vid­u­als with learn­ing dif­fi­cul­ties)
• using assess­ment tests mea­sur­ing abil­i­ties not required by the job but which could dis­crim­i­nate against groups of peo­ple (ie rea­son­ing abil­i­ty tests for unskilled man­u­al jobs which could dis­crim­i­nate against those with­out Eng­lish as a first lan­guage)
• set­ting dif­fer­ent tests for dif­fer­ent appli­cants for a job (e.g. female appli­cants can­not be asked to car­ry out tests of phys­i­cal strength if male appli­cants are not asked to do the same)
• ask­ing ques­tions of some appli­cants and not of oth­ers (the clas­sic and very com­mon exam­ple being that of ask­ing a female appli­cant when she intends start­ing a fam­i­ly).

In con­sid­er­ing whether an act of indi­rect dis­crim­i­na­tion has occurred or not, an Employ­ment Tri­bunal can draw rea­son­able infer­ences from an employer’s nor­mal prac­tices in addi­tion to look­ing at the facts of the par­tic­u­lar case. The Tri­bunal mem­bers might for exam­ple, in the case of a claim for racial dis­crim­i­na­tion, look at the eth­nic make­up of the exist­ing work­force and com­pare this with the eth­nic make­up of the local com­mu­ni­ty. A sig­nif­i­cant dif­fer­ence between these pro­por­tions could sug­gest to the Tri­bunal that dis­crim­i­na­tion is more like­ly to have hap­pened.

Pos­si­ble but strict­ly lim­it­ed excep­tions where appli­cants can be cho­sen on grounds of sex, sex­u­al ori­en­ta­tion, reli­gion, race or age.

Whilst direct and indi­rect dis­crim­i­na­tion are gen­er­al­ly pro­hib­it­ed, the leg­is­la­tion accepts that in some occu­pa­tions it may be nec­es­sary to be of a par­tic­u­lar sex, sex­u­al ori­en­ta­tion, reli­gion, racial group or age. These lim­it­ed excep­tions are referred to as being Gen­uine Occu­pa­tion­al Rea­sons (GORs) (there are no such excep­tions for dis­abil­i­ty). None of the leg­is­la­tion actu­al­ly allows dis­crim­i­na­tion to be used to main­tain a bal­ance between the sex­es, the reli­gious or the racial mix.

If a dis­crim­i­na­tion claim is brought, the bur­den of proof is on the employ­er to prove there is a GOR. You must decide whether a GOR exists before adver­tis­ing the job. All roles in an organ­i­sa­tion must be con­sid­ered sep­a­rate­ly; if there is a GOR relat­ing to one role, it will not nec­es­sar­i­ly apply to all roles with­in the organ­i­sa­tion.

GORs should be reviewed each time the job becomes vacant, as cir­cum­stances may change. If only a few tasks require that the employ­ee has a par­tic­u­lar char­ac­ter­is­tic, you should con­sid­er whether duties could be real­lo­cat­ed to oth­er employ­ees who do meet the require­ment.

Positive discrimination

Since April 2011 Sec­tion 159 of the Equal­i­ty Act 2010 per­mits employ­ers to treat indi­vid­u­als with a pro­tect­ed char­ac­ter­is­tic more favourably than oth­ers in con­nec­tion with recruit­ment or pro­mo­tion. This applies only to can­di­dates of equal mer­it and the more favourable treat­ment must enable or encour­age an indi­vid­ual to over­come or min­imise a dis­ad­van­tage or par­tic­i­pate in an activ­i­ty where he or she is under-rep­re­sent­ed in that activ­i­ty.

Disability

The def­i­n­i­tion of what con­sti­tutes a dis­abil­i­ty can be split into three parts:

• the employ­ee must be suf­fer­ing from a phys­i­cal or men­tal impair­ment
• the impair­ment must have a sub­stan­tial effect on the abil­i­ty to car­ry out nor­mal day-to-day activ­i­ties, which would include things like using a tele­phone, read­ing a book or using pub­lic trans­port. Sub­stan­tial means more than minor or triv­ial
• the effect must be long-term, in oth­er words have already last­ed for at least 12 months or be like­ly to last that long.

The Equal­i­ty Act 2010 includes new pro­tec­tion from dis­crim­i­na­tion aris­ing from dis­abil­i­ty. This includes indi­rect dis­crim­i­na­tion, asso­cia­tive dis­crim­i­na­tion and dis­crim­i­na­tion by per­cep­tion.

The meaning of disability

The Equal­i­ty Act 2010 cov­ers dis­crim­i­na­tion against dis­abil­i­ty which insists that employ­ers may not treat a per­son with a dis­abil­i­ty less favourably than oth­er per­sons with­out jus­ti­fi­able rea­sons. How­ev­er, this does not apply if an employ­er shows that they did not know, and could not rea­son­ably have been expect­ed to know, that a dis­abled per­son had the dis­abil­i­ty.

The Act requires employ­ers to make ‘rea­son­able adjust­ments’ to the work­place where these would over­come the prac­ti­cal effects of an individual’s dis­abil­i­ty. If an appli­cant for a posi­tion believes that he/she has been dis­crim­i­nat­ed against they may make a com­plaint to an Employ­ment Tri­bunal.

What are ‘reasonable adjustments’?

In this con­text the word rea­son­able means whether or not such steps would be prac­ti­ca­ble and would actu­al­ly have an effect, and are rea­son­able giv­en the resources of the employ­er. For exam­ple, the local branch of Marks & Spencer would prob­a­bly be expect­ed to have more resources than would a small local retail­er.

Rea­son­able adjust­ments to the work­place that employ­ers might be expect­ed to make include:

• mak­ing adjust­ments to interview/selection process such as allow­ing extra time for assess­ments
• trans­fer­ring the indi­vid­ual to fill anoth­er vacan­cy or to a dif­fer­ent place of work
• alter­ing work­ing hours
• allow­ing them time dur­ing work­ing hours for reha­bil­i­ta­tion or treat­ment
• allo­cat­ing some duties to anoth­er per­son
• arrang­ing for spe­cial train­ing
• acquir­ing or mod­i­fy­ing premis­es, equip­ment, instruc­tions or man­u­als
• pro­vid­ing read­ers or super­vi­sion

Claims against employers for discrimination

Appli­ca­tions can be made to an Employ­ment Tri­bunal from some­one who was not select­ed for an ini­tial inter­view, for a final short-list or offered the job, and who believes it was because of age, dis­abil­i­ty, gen­der reas­sign­ment, race, reli­gion or belief, sex, sex­u­al ori­en­ta­tion, mar­riage and civ­il part­ner­ship, trade union mem­ber­ship or lack of such mem­ber­ship. The appli­ca­tion must be made with­in three months of the alleged dis­crim­i­na­tion and the Tri­bunal will take into account rea­son­able infer­ences from the actu­al employ­ment prac­tices of the employ­er as well as from the par­tic­u­lar facts of the indi­vid­ual case.