Total equality management: it's all too easy to fall foul of an expensive discrimination claim, since a complainant needn't prove that they were intentionally treated unfairly. Sue Ashtiany advises firms to tighten up their recruitment practices.

AuthorAshtiany, Sue
PositionLegal briefing

The basic premise of UK anti-discrimination law is simple: recruitment and other employment decisions should not be based on irrelevant considerations. The first important pieces of legislation in this area came in the seventies: the Sex Discrimination Act 1975 and the Race Relations Act 1976. Their main function was to outlaw treating people "less favourably" than others on the grounds of their sex or race where all other material circumstances were the same. This concept of direct discrimination remains the key area of protection as the law has expanded to include other factors--namely: sexuality, religion and age.

The underlying assumption of direct discrimination law is that people are basically the same as each other, whatever their age, race, sexuality and so on. We should not, therefore, make assumptions about them based on those characteristics. If we do treat someone less favourably for such reasons, we are acting unlawfully.

This concept has been expanded through case law over the years. The early cases decided that less favourable treatment could be proved without any objective evidence of an actual disadvantage. So, as long as a complainant feels disadvantaged and is not being too unreasonable, they have suffered less favourable treatment--it's not for us to tell them that they haven't.

Next the courts recognised that employers' prejudices are often unconscious, which means that complainants now only have to demonstrate discriminatory outcomes rather than motives. Then came the idea that, since few of us will admit to being biased, a court must infer that an employer must have discriminated if it cannot give a convincing reason for its actions.

All these developments have shifted the focus on to selection procedures. If unlawful discrimination can be unintentional, what steps can an employer take to prevent it? The answer is thought to lie in having sound, evidence-based processes. Accordingly, firms would be well advised to ensure that they have formal rules for shortlisting when recruiting, using criteria that do not shift. They should also formalise the interview process. Those involved in recruiting should be trained--for their own peace of mind--so that they can articulate their decisions in a nondiscriminatory way. It can be important to make and keep good notes, at least of any panel deliberations. Such a systematic approach should eliminate quite a few risks.

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The law also recognises that sometimes...

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