Training

Recruitment LAW AND LEGISLATION

AN INTRODUCTION TO DISCRIMINATION IN THE WORKPLACE

Every company wants the best person for the job. However, unequal treatment, prejudice or harassment discredits many businesses every year and the costs are high in both fines, awards legal and fees.

A director, owner or manager may be held responsible for any discriminatory action by it's employees.

It is unlawful to discriminate on the grounds of someone's sex, sexual orientation, status as a married person, race, colour, nationality, ethnic origin, religion, beliefs or because of a disability, pregnancy or childbirth, or subsequent maternity leave or because they are a member or non-member of a trade union.

It is unlawful to discriminate against part-time workers.

From 5 December 2005, laws have been extended to include people with certain illnesses effectively from the point of diagnosis. The restriction that mental illnesses must be "clinically well recognised" has also been removed from this date.

Also from 5 December 2005, a person who is a civil partner in a registered civil partnership of a same-sex couple should not be treated less favourably than a married person in similar circumstances. If a civil partner is treated less favourably, they may be able to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations or a claim for sex discrimination.

The law in Northern Ireland is more wide-ranging on matters of discrimination.

This guide tells you what you must know about the law on discrimination and advises on best practice.

AGE DISCRIMINATION

AGE DISCRIMINATION

The Employment Equality (Age) Regulations Act was introduced on 1st October 2006, making it unlawful to discriminate against individuals on the basis of age in recruitment and employment.

Helpful Hints - Job Descriptions

  • When advertising new positions, your job description should outline the duties required of the position along with the skills, knowledge and experience required to carry out these duties.
  • Avoid any reference to the age group of the desired applicant or the age group of any colleagues that the successful applicant will be working with, e.g. 'applicant needed to work with a young, lively team'.
  • Add the words 'or equivalent' next to any academic qualifications. Simply stating a GCSE requirement would rule out many older people who left school before GCSEs were introduced.
  • The term 'mature' should be avoided unless it is made clear that it refers to attitude rather than age.
    Avoid asking for 'x years experience'. The quality and relevance of the experience should be important - not the number of years.
  • You may find it helpful to monitor how effective your recruitment process is. For example, you could count the number of candidates of different age groups who applied, were short-listed, interviewed and appointed.
  • You should also make sure that your redundancy procedures are based on business needs rather than age.
  • Useful Contacts
    You can call The ACAS (Advisory, Conciliation and Arbitration Service) help-line for any specific questions on 08457 474747.
  • Alternatively, visit The Department for Trade and Industry, ACAS, or Age Positive websites for more information.

You can read about age discrimination legislation on the Age Partnership Group website

Other areas on this subject:

THE EMPLOYMENT AGENCIES ACT 2004

THE EMPLOYMENT AGENCIES ACT 2004

The following are major changes to the Regulations which came into force in Great Britain on 6th April 2004.

Restrictions on charging introduction or 'transfer' fees
Changes to the Employment Agencies Act 1973 in 2000 permitted the Government to restrict charges to 'temp to perm', 'temp to temp' and 'temp to third party' fees.

Firstly you may not charge an introduction fee for a temporary worker unless you give the client the option of paying the fee or taking the worker for an extended period of hire.  The amount of the fee and the period of hire are a matter for negotiation and are without restriction.

Secondly, you may charge a client an agreed sum of money if they take on a temporary worker either on a permanent basis or through another agency within a period of eight weeks after the end of an assignment provided the client has the option of keeping the worker on a temporary basis for an agreed period of time instead.  Again, there are no restrictions on the length of either the initial period of hire or the extended period and no restriction on the amount of the fee.

You may also charge a client who introduces a worker to another person, who may be another agency, who then employs that worker within eight weeks of the end of an assignment provided they have been given the option of an extended hire period and chose not to exercise this.  (If it is the first assignment for that worker with that client, the period during which you can charge a fee is the longer period of either 14 weeks from the start of that assignment or eight weeks after its end.)

Limited Company Contractors
Since the definition of a 'work-seeker' has changed from an 'individual' to a 'person', limited company contractors seeking work through employment agencies or businesses are protected by these Regulations.  Many contractors objected to this claiming that it might affect their status for IR35 and so the Government has introduced an opt-out for those contractors who do not want the protection of the Regulations.  This will be in the form of a declaration before the start of an assignment and there are measures to prevent work-seekers being coerced into signing this.

If a contractor submits to the protection of the Regulations you will not be able to restrict him/her from taking up work directly with a hirer to whom he/she has been supplied by you.  However, this will not stop you charging the hirer a 'transfer fee' (see above).

Paying Temporary Workers
Employment businesses will be unable to withhold pay in circumstances where either the client refuses to pay for work done, as a penalty for not completing an assignment or in circumstances where the worker does not produce a signed timesheet, provided the business can satisfy itself by other means that the work was done.

Agreement of Terms
Agencies will have to get the agreement of worker and clients to any terms offered together with any variation in those terms and record these in a single document.  This means you will have to get a signature or some evidence of agreement and may not have important information such as rates of pay or refund terms in a separate document to the terms of business.

Information from and to the Hirer and Work-Seeker
Detailed information about the work and any risks to Health & Safety will have to be obtained from a hirer before the assignment starts.  While confirmation of a worker's identity and their willingness to take the assignment must be obtained from the worker before putting their details forward.

There Regulations also detail the information that you must give orally or otherwise, when you introduce a worker or offer work to a work-seeker.

Unsuitable Candidates
Agencies who become aware within 3 months of an introduction to a client of any information that makes a candidate unsuitable for the position they have been placed in must inform the hirer without delay.  This provision may give rise to some interesting issues over Data Protection and so the detailed guidance expected to accompany the Regulations will be important for interpretation of the circumstances this will apply in.

Other areas on this subject:

THE EMPLOYMENT AGENCIES ACT 1973

THE EMPLOYMENT AGENCIES ACT 1973

Introduction

This webpage gives general guidance on the Employment Agencies Act 1973 and regulations. It should not be regarded as an authoritative interpretation of those provisions.

Copies of the legislation are available from the Employment Agency Standards Inspectorate.

The Employment Agencies Act 1973 (as amended by the Employment Protection Act 1975 and the Deregulation and Contracting Out Act 1994) sets minimum standards of conduct for employment agencies and employment businesses operating from premises in Great Britain.

All employment agencies and employment businesses must comply with the provisions of the Act and the regulations made under it. The provisions are designed to protect the interests of job seekers and employers using employment agency or employment business services.

An employment tribunal may, on application by the Secretary of State, make an order prohibiting a person from carrying on an employment agency or employment business.

Who the Act applies to

The Act applies to employment agencies and employment businesses whether they are carried on by commercial concerns for profit or by non-profit-making bodies. This includes those that deal with au pairs and with freelance or self-employed workers as well as those that deal only with workers on a normal contract of employment.

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Employment agencies
Under the Act an 'employment agency' is defined as the business of providing services (whether by the provision of information or otherwise) for the purpose of finding workers employment with employers or of supplying employers with workers for employment by them. The Act thus applies to a wide range of agencies, from the familiar recruitment agency, through a range of specialist agencies to entertainment and model agents, the executive selection functions of management consultants and executive search consultants.

Employment businesses
The other kind of activity covered, the 'employment business', is defined as the business of supplying people in the employment of the person carrying on the business, to act for, and under the control of, other people in any capacity.

This covers the hiring out of workers on a temporary basis and is frequently called 'temping'. It has long been associated with the supply of temporary secretarial and other office staff, but has extended into many other areas, including professional and industrial occupations.

The Act does not extend to sub-contracting i.e. independent contractors undertaking specific tasks using their own staff acting and remaining under their direction and control.

Those excluded from the scope of the Act

The following are excluded from the scope of the Act:

  • services provided by university appointments boards and certain other educational institutions, by local authorities, by trade unions, employers' organisations and certain professional bodies for their members or by charitable organisations.
  • services for qualified nurses and certified midwives (N.B. agencies supplying these services are subject to licensing and control under the Nurses Agencies Act 1957 (in England and Wales) and the Nurses (Scotland) Act 1951. Licensing and enforcement are carried out by local authorities);
  • certain services provided exclusively for ex-members of HM Forces or for persons released from prisons or from other institutions;
  • the hiring out of workers as an ancillary to the letting out on hire of an aircraft, vessel, vehicle, plant or equipment (for example a chauffeur-driven car-hire service or the hire of construction plant with an operator).

Fees

Employment agencies and employment businesses are prohibited from charging fees to workers for finding or seeking to find them jobs.

The exception is the finding of jobs for performers and certain other workers in the entertainment field and photographic or fashion models. This exception is subject to certain limitations set out in regulations (see the Employment Agencies Act 1973 (Charging Fees to Workers) Regulations 1976 (SI 1976 No 714)).

An agency which uses the services of an agent abroad in finding a post for an au pair outside the United Kingdom is allowed to charge a fee to the au pair for finding the position, but the fee must not exceed £40 and cannot be charged until the au pair has accepted the post offered (see the Employment Agencies Act 1973 (Charging Fees to Au Pairs) Regulations 1981 (SI 1981 No 1481)).

The Act does not regulate the fees charged to employers by employment agencies and businesses or the rates paid by employment businesses to workers employed by them.

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Standards of Conduct

Regulations have been made by the Secretary of State under section 5 of the Act for the conduct of employment agencies and businesses (see the Conduct of Employment Agencies and Employment Businesses Regulations 1976 (SI 1976 No 715)). These set the standards to be met.

Employment agencies
The following is a list of the principal duties and obligations placed on employment agencies.

General
Employment agencies:

  • must obtain adequate information from employer and worker clients for the purpose of selecting a suitable worker for a vacancy and vice versa;
  • must not disclose information about employers and workers other than for the purpose of finding people jobs or supplying employers with workers, except with the written consent of the worker or employer who gave the information or in certain other specified circumstances;
  • must make enquiries to ensure that workers possess any necessary qualifications required by law (such as a heavy-goods vehicle driving licence in the case of a lorry driver or appropriate qualifications in the case of a pharmacist or doctor);
  • must ensure that the worker and employer are aware of any conditions imposed by law which must be satisfied by the worker or employer (such as the need for a work permit or a variation of landing conditions in the case of an overseas worker) and that the employment (whether in the United Kingdom or abroad) will be legal;
  • must not offer workers financial benefit or benefit in kind to persuade them to use their services;
  • must not approach a worker already placed by them in employment for a fee with a view to arranging employment for the worker with another employer (except with the agreement of the present employer).

Advertisements
Employment agencies:

  • must make it clear in advertisements and business letters that they are employment agencies;
  • who issue an advertisement offering a service of information about jobs must, if they have no authority from an employer to find workers for such jobs, state this fact in the advertisement.

Fees
Employment agencies:

  • must on receipt of an application from an employer client, immediately provide a clearly legible written statement of current terms of business (unless this has previously have been given) including a scale of fees, the circumstances in which rebates are payable and the scale of such rebates or, if it is the case, a statement that rebates are not payable;
  • if allowed to charge a worker a fee for finding or seeking to find him or her employment, must, before providing this service, give the worker a clearly legible written statement detailing current terms of business;
  • where proposing to charge a worker a fee for services other than job finding, must, before providing services, give the worker a clearly legible written statement detailing the service and the proposed charge;
  • must not make the provision of job-finding services conditional upon the worker using other services for which the agent is not prevented by the Act from charging a fee.

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Young people under eighteen
Employment agencies:

  • must not introduce to an employer a young person who is attending, or has just left school, unless they have made appropriate enquiries to find out whether the young person has received vocational guidance from the local careers service (this regulation does not apply to employment outside school hours, if the young person is still at school);
  • before arranging employment abroad for a young person, or employment in the United Kingdom for a young person from abroad:
  • must obtain written consent directly from a parent or guardian;
  • must make appropriate enquiries to ensure that suitable accommodation has been arranged at an appropriate price which is acceptable to the young person; and
  • must ensure that, when the employment is for a fixed term, proper return-fare arrangements are made to cover the possibility of the employment not beginning or of it finishing during the first ten weeks.

Employment abroad and employment of workers from abroad
Employment agencies:

  • must obtain satisfactory written testimony that any employment agent used in another country is a suitable person and not prohibited by the law of that country from acting as an agent;
  • must not arrange employment abroad for a worker with an employer who has no business premises in the United Kingdom, unless satisfactory written testimony has been obtained which states that the proposed employment will not be detrimental to the worker's interests;
  • must obtain two character references for any worker from abroad for whom it is proposed to arrange employment in the United Kingdom and make them available to the employer before a contract of employment is entered into. If this is impracticable in the time available, the employer must be informed. (N.B. this regulation does not apply to employment as a performer in the entertainment industry);
  • must not arrange employment for a worker coming to this country for a job, or going to a job abroad, if the rate of repayment of any advance of fare is one-eighth or more of the worker's basic weekly pay, or the total amount to be repaid is more than three weeks' pay in the job - an au pair arrangement must not be made if there is a requirement to repay fares out of pocket money payable by the host;
  • except in the case of urgent arrangements for fixed-term employment of less than fourteen days, must ensure that both worker and employer receive, before the worker's departure, a written statement in a language they understand, giving specified details of the employment or of the worker respectively.

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Safeguarding clients' money
Employment agencies:

  • if they receive money on behalf of a worker client, must pay it directly to the worker within ten days of receipt or, if the worker has requested the agent in writing to hold money received from employers on the worker's behalf, must pay it into a special client account operated in accordance with rules set out in the regulations;
  • if an employer and worker authorise them to draw up the contract between them and payment is to be made through the agent, must ensure that the contract is in writing in one document and that a copy is supplied to both parties.

Records
Employment agencies:

  • must maintain certain records, including records of information about workers and employers.

Employment businesses
The principal duties and obligations imposed on employment businesses (temporary staff contractors) are as follows:

General
Employment businesses:

  • before entering into a contract with a hirer, must inform the hirer of their current terms of business, including the procedure if a worker supplied is unsatisfactory, any fee payable if the hirer takes the worker into his or her direct employment and whether workers supplied are employees of the employment business or self-employed - a clearly legible written statement of these terms must be sent to the hirer within twenty four hours of the first worker supplied commencing work;
  • must obtain adequate information from a hirer about the work to enable a suitable worker to be selected;
  • must give to a worker on entering their employment full details in writing of the terms and conditions of employment, including whether he or she is under contract of service or is self-employed, the kind of work he or she may be supplied to do and the minimum rates of pay for such work; subsequent changes agreed by the worker must also be given to him or her in writing;
  • must, before supplying a worker to a hirer:
  • give the worker all available information about the nature of the hirer's business, the kind of work and the hours and rate of pay applicable and make appropriate enquiries to find out whether the worker has any qualification which is required by law for the work and that performance of the work (whether in the United Kingdom or abroad) will not contravene the law;
  • must not prohibit or restrict their workers in any way from entering the direct employment of a hirer and must not refuse to pay a worker because they have not been paid by the hirer;
  • must not supply workers to a hirer as direct replacement for employees who are in industrial dispute with the hirer, to do the work normally performed by those employees;
  • must not supply to a hirer a worker who within the previous six months was employed directly by the hirer (unless the latter consents in writing);
  • must not approach workers in employment to induce them to enter their employ for the purpose of being supplied to hirers.

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Advertisements
Employment businesses:

  • must make clear in advertisements and business letters that they are employment businesses;
  • when quoting rates of pay for workers to be supplied to hirers in an advertisement, must also state the nature of the work, its location and the minimum qualifications necessary to receive the rate of pay quoted;
  • when supplying workers to hirers on a self-employed basis only, must state this fact in any recruitment advertisement issued by them.

Work abroad
Employment businesses:

  • must not supply a worker to a hirer abroad who has no business premises in the United Kingdom unless satisfactory written testimony has been obtained which states that the work will not be detrimental to the worker's interests;
  • must not send a worker to a hirer abroad unless they have made arrangements to pay the worker's return fare themselves when the job ends or if the job does not commence, or else have obtained a written undertaking from the hirer to do so - if a hirer defaults on such an undertaking, the employment business must pay the return fare;
  • must supply the worker and the hirer, before the worker departs, with a written statement giving specified details of the work or of the worker respectively.

Records
Employment businesses:

  • must maintain certain records, including records of information about workers and employers.

Infringement of the Act and regulations

Anyone who:

  • contravenes the prohibition on charging fees to workers;
  • contravenes or fails to comply with any of the regulations made to secure the proper conduct of employment agencies and businesses;
  • makes, causes to be made, or knowingly allows false entries to be made in any record or document that has to be kept under the Act or regulations; or
  • fails without reasonable excuse to comply with a prohibition order

will be guilty of an offence and liable on summary conviction to a fine not exceeding £5,000.

In addition, any person who obstructs an officer in carrying out any enforcement functions will be guilty of an offence and liable on summary conviction to a fine not exceeding £1,000.

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Prohibition Orders

An employment tribunal may, on application by the Secretary of State, make an order prohibiting a person (which includes a company) from carrying on, or being concerned with the carrying on of, an employment agency or employment business for up to 10 years on the grounds that the person concerned is unsuitable because of misconduct or any other sufficient reason.

A prohibition order may:

  • prohibit a person from running an employment agency or business, or any description of employment agency or business specified in the order; or
  • impose certain conditions under which a person may be allowed to run an employment agency or business.

Code for Employment Agency Standards Inspectorate

The explanation of the law on this web page and the information in the sections which follow comprise our Code for the Employment Agency Standards Inspectorate.

The enforcement functions under the Act are carried out by visiting inspectors employed by the Employment Agency Standards Inspectorate. The Act enables our inspectors to enter premises which they have reason to believe are used for the purposes of an employment agency or business. They have powers to inspect the premises and any records or documents kept in accordance with the Act or regulations.

They may also require the production of such information as they may reasonably need to ascertain whether the Act and regulations are being complied with or to enable the Secretary of State to exercise his functions under the Act. All our inspectors carry official means of identification.

Our enforcement policy includes investigating as a priority any complaint about the conduct of an employment agency or employment business. Our inspectors also follow up other information about possible misconduct and undertake random checks.

If our inspectors find evidence of breaches of the Act or regulations, the next steps depend on the circumstances of the case. In the case of minor infringements or where an agency is found for the first time to be in breach of law, the usual step is for the inspectors to explain the position and warn against further breaches. In the more serious cases, this explanation will also be provided in writing. The explanation will be in terms of obligatory requirements because the specific nature of the Act and regulations leaves no room for recommending actions which are not mandatory.

In the case of an employment agency or employment business which is found to have breached the law before, or which has caused serious harm to its users through disregard for the protective provisions, we may take the option of prosecution in a Magistrates' Court or an application for a prohibition order.

If an employment agency or employment business wishes to question any explanation given by one of our inspectors or to make representations about the application of the law, we will listen, seek legal advice if necessary and advise appropriately. Such questions or representations should first be sent to the Operations Manager at the Employment Agency Inspectorate.

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Complaints about employment agencies and employment businesses
The Dti will investigate complaints about the conduct of an employment agency or employment business within the scope of the Act as a matter of priority. If you wish to make a complaint please write to, telephone, email or fax the Employment Agency Standards Office. They will supply a simple form to help you make your complaint if you need it.

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Appendix - other legal requirements

Many additional legal requirements in legislation other than the Employment Agencies Act 1973 and regulations made under it apply to employment agencies and employment businesses either specifically or as they apply to businesses or employers generally. These include the specific obligations placed on employment agencies and employment businesses by legislation relating to discrimination in employment, viz:

Sex Discrimination Act 1975 (as amended by the Sex Discrimination Act 1986 and Employment Act 1989). The legislation makes it unlawful for an employment agency to discriminate against a person on the grounds of sex or marriage in relation to the provision of its services. The Equal Opportunities Commission has produced a Code of Practice on equal opportunity policies, procedures and practices in employment, which is available from the Equal Opportunities Commission, Overseas House, Quay Street, Manchester M3 3HN (tel: 0161 833 9244).

Race Relations Act 1976. The legislation makes it unlawful for an employment agency to discriminate against a person on the grounds of colour, race, nationality or ethnic or national origins in relation to the provision of its services. The Commission for Racial Equality's Race Relations Code of Practice for the elimination of racial discrimination and the promotion of equal opportunity in employment includes responsibilities and recommendations for employment agencies and employment businesses. Copies are available from the Commission for Racial Equality, Elliot House, 10-12 Allington Street, London SW1E 5EH (tel: 020 7828 7022).

Trade Union and Labour Relations (Consolidation) Act 1992 which, generally, makes it unlawful to refuse access to employment on grounds related to trade union membership. In particular, the Act makes it unlawful for employment agencies to refuse to provide their normal service to an applicant because of his trade union membership or non-membership. Guidance booklet PL871 is obtainable from any office of the Employment Service or from any regional office of the Advisory, Conciliation and Arbitration Service (ACAS).

The Disability Discrimination Act 1995 (DDA) makes it unlawful for employers to discriminate against disabled employees or job applicants. Employers may have to make reasonable adjustments to employment arrangements and the workplace. Disabled people who have been discriminated against can complain to an employment tribunal. ACAS can help conciliate. Employers with fewer than 15 employees are excluded. Further details are contained in booklet DL170 DDA: What employers need to know, which is available from the Disability Rights Commission's (DRC) helpline, which can be phoned for the cost of a local call on 08457 622633 (or 08457 622644 for textphone).

The DDA also makes it unlawful for those providing goods, facilities, services or premises to the public ("service providers") to discriminate against disabled people. It applies to service providers of any size. Service providers must not treat disabled people less favourably for a reason related to their disability, and disabled people who have been discriminated against can complain to the courts. Since 1 October 1999, service providers have also had to make reasonable adjustments to enable disabled people to use their services. This may include: altering policies, practices or procedures which exclude disabled people; providing auxiliary aids and services or providing the service in a reasonable alternative way where a physical feature prevents access. Further details are contained in booklet DL150 DDA: What service providers need to know, which is also available from the DRC Helpline. From 1 October 2004, service providers will have to consider making reasonable adjustments to the physical features of their premises if they continue to prevent access to services.

A finding by a court or tribunal that any employment agency, employment business or person concerned with carrying on an agency or business is in breach of statutory obligations may give the Secretary of State grounds for applying to an employment tribunal for a prohibition order.

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Dates of Legislation

DATES OF LEGISLATION

Age Legislation October 2006
Legislation on age was introduced in October 2006 to cover employment and vocational training. It will effect people of all ages and it will effect you. Age will be the final strand of equality legislation to be implemented and it will be enforced alongside existing legislation on race, sex, disability, sexual orientation, religion or belief
Anti-discrimination legislation that already exists.

Equal Pay Act 1970
The Equal Pay Act 1970 gives an individual a right to the same contractual pay and benefits as a person of the opposite sex in the same employment, where the man and woman are doing the same work, work rated as equivalent work, or work of equal value.

Sex Discrimination Act 1975
The Sex Discrimination Act applies to men and women of any age, including children. It makes discrimination on the grounds of sex or marriage unlawful and victimizing anyone who takes a case is also unlawful. However, it is not unlawful to discriminate against someone because they are not married.

Race Relations Act 1976
The Race Relations Act covers people from all racial groups and makes no distinction on the grounds of race, colour, nationality (including citizenship), or ethnic or national origin. The Act was amended in 2000 –the Race Relations (Amendment) Act 2000. This means that the Act now includes public functions, even if those functions are carried out by a private business; and it also places a general duty on listed public authorities to promote race equality.

Disability Discrimination Act 1995
The Disability Discrimination Act covers discrimination against disabled people. It originally applied to employers with 15 or more employees, but recent changes implemented October 2004 mean that the Act now applies to most employers no matter how many members of staff. The Act is to ensure that disabled people are treated equally and not discriminated against for a reason related to their disability including if, without justification, a ‘reasonable adjustment’is not made. The Act also applies to all those who provide goods, facilities and services for the publicEmployment Equality (Sexual Orientation) Regulations 2003
The regulations protect everyone from direct and indirect discrimination, harassment and victimization in employment and training on the grounds of sexual orientation. Practical workplace guidance can be obtained from ACAS, Stonewall –a lesbian, gay and bisexual group (www.stonewall.org.uk). There is a range of information and advice sources available on the DTI web page dedicated to the regulations (www.dti.gov.uk/equality). The regulations will be updated to reflect the introduction of the Civil Partnership Act and the new legal status of civil partnership.Employment Equality (Religion or Belief) Regulations 2003
The regulations protect everyone from direct and indirect discrimination, harassment and victimization in employment and training on the grounds of religion or belief. Practical workplace guidance can be obtained from ACAS. Information detailing the cultural differences, customs and requirements of different religions can be found at www.mulifaithnet.org

The Human Rights Act 1998
Although the Human Rights Act is different to the other laws listed here, it is useful to know the basics as it is being used more frequently. The Human Rights Act came into force on 2 October 2000. It has sixteen basic rights, which effect all aspects of human rights, from freedom from torture and killing to individual rights in every day life. It also includes the right not to be treated differently because of your race, religion, sex, political views or any other status, unless it can be objectively justified. It incorporates into UK law Rights and freedoms guaranteed by the European Convention on Human Rights. The new law does three simple things It makes it unlawful for a public authority, like a government department, local authority or the police, to breach the Convention rights, unless, because of an Act of Parliament, it has no choice. It says that all UK legislation should be given a meaning that fits with the Convention rights, if that’s possible. If a court says it’s not possible, it will be up to Parliament to decide what to do It means that cases can be dealt with in a UK Court or tribunal. Until this law, anyone who felt that their rights had been breached had to go to the European Court of Human Rights in Strasbourg

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DISCRIMINATION AGAINST DISABLED PEOPLE

DISCRIMINATION AGAINST DISABLED PEOPLE

Since 1 October 2004, it has been unlawful for any employer, regardless of size, with the exception of the armed forces, to directly discriminate against a disabled person because they are disabled. Also they must not discriminate against a disabled person for a reason related to their disability, unless this can be justified.

What counts as a disability?

The Disability Discrimination Act defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. This doesn't include drug or alcohol abuse or a tendency to start fires, steal or physically abuse others, amongst other exclusions.

From 5 December 2005, the Disability Discrimination Act 2005 has widened this definition of disability, providing protection for people with cancer, HIV and multiple sclerosis, effectively from the point of diagnosis. The restriction that mental illness must be "clinically well-recognised" before it is judged to be a mental impairment has also been removed. Read about the Disability Discrimination Act 2005 on the Directgov website.

What employers must not do

An employer mustn't treat a disabled person less favourably than other members of staff. For instance, you shouldn't refuse to interview, employ, train or promote a disabled person, simply because of their disability. Since 1 October 2004, harassment on the grounds of disability has also been explicitly outlawed.

What employers must do

Employers have a duty to make reasonable adjustments to enable a disabled person to work or continue working. Reasonable adjustments often involve little or no cost to your business. To find out what you need to consider before making an adjustment for disabled employees see our guide on how to provide access and facilities for disabled people.

Penalties for discrimination

Where an employment tribunal finds that disability discrimination has occurred, penalties can be high, since there is no limit on compensation.

There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, he or she does not need to have left your employment. However, the claim to an employment tribunal will generally have to be brought within three months of the alleged discriminatory act occurring.

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DIRECT AND IN-DIRECT DISCRIMINATION

DIRECT AND IN-DIRECT DISCRIMINATION - DISCRIMINATION IN DAY-TO-DAY WORKING PRACTICES

Direct discrimination is generally easily recognisable, where someone is denied employment because of race, gender, sexual orientation, disability, etc. Indirect discrimination, however, can be harder to detect and may often be unintentional.

If a person feels they are discriminated against unlawfully, they may take a case to an employment tribunal. This could lead to heavy penalties for an employer and, in the absence of an appropriate explanation, employment tribunals are required to infer that discrimination has occurred. See the A-Z list of practical guidance on employment issues on the Acas website.

It is also important to bear in mind that anti-discrimination legislation applies equally to part-time workers. It's against the law to discriminate against part-time workers because of their part-time status.

Most employers produce policies that set out the rules and procedures their staff need to know. A policy statement may help employees to understand what the employer expects of them, and their legal rights and obligations.
- see our guide on how to set up employment policies for your business.

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. Access information which provides advice for employers on good, equal-pay practice on the Equal Opportunities Commission website.

Positive action

In the UK positive discrimination is unlawful but positive action is not. This means equality targets can be put in place as a way of eliminating historic imbalances in terms of gender, ethnicity, disability, sexual orientation and religion or belief

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DISCRIMINATION IN RECRUITMENT AND INDUCTION

DISCRIMINATION IN RECRUITMENT AND INDUCTION

It is important to avoid discrimination in recruitment and induction processes. Remember - someone might be able to take you to an employment tribunal, even though they're not an employee, if they believe they weren't selected for a particular job for discriminatory reasons.

The Code of Practice on Racial Equality in Employment that came into force 22 November 2005. It becomes statutory from 6 April 2006. This provides guidance on how to prevent unlawful racial discrimination in recruitment policies. Download guidance on achieving racial equality in employment from the Commission of Racial Equality website (PDF).

Since 1 October 2004, the Disability Discrimination Act has included provisions outlawing job advertisements which imply that any candidate's success depends to any extent on him or her not having a disability, or which indicates a reluctance on the part of the employer to make reasonable adjustments. In addition, since 5 December 2005, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.

While it is rare to see advertisements specifying a particular race or gender, age discrimination is still common with phrases such as "young", "would suit someone who has just qualified" or "minimum of ten years' experience".

This is likely to lessen when proposed anti-age discrimination legislation is enacted but it is good practice to take action on this now. See the page in this guide on age discrimination.

In certain circumstances discrimination may be allowed if it is seen to be a genuine occupational qualification for the job in question.

When interviewing people for a job there are certain questions you should not ask, either directly or indirectly, including whether a candidate is married, a partner in a same-sex civil partnership, or plans to have children. You must not attempt to elicit information about a person's sexual orientation or their religion. Read about the actions you should take to give equal treatment to civil partners in your policies, forms and other material on the ACAS website.

Care should also be taken when asking about a disability. Whilst the Disability Discrimination Act does not prohibit an employer from seeking information about a disability, that information must not be used to discriminate against a disabled person. An employer should only ask such questions if they are relevant to the person's ability to do the job, after a reasonable adjustment, if necessary.

This approach should be applied throughout meetings and induction.

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DISCRIMINATION ON THE GROUNDS OF RACE

DISCRIMINATION ON THE GROUNDS OF RACE

It's unlawful to discriminate against someone, either directly or indirectly, on the grounds of race, colour, nationality - including citizenship - or ethnic origins, under the Race Relations Act 1976. Racial harassment is defined as a form of discrimination.

As with other forms of discrimination, it can be either direct or indirect on the grounds of race.

Direct discrimination may include treating somebody less favourably on the grounds of their race, colour, ethnicity or national origin.

Indirect discrimination can occur when an employer applies an apparently general rule that in practice disadvantages people of a particular race, colour, ethnicity or national origin and that cannot be justified.

This form of discrimination applies to the way employees are recruited, trained, promoted and selected for dismissal on grounds of redundancy, or, after they have left, if an employer refuses to provide a reference because they have a discrimination claim against an employer.

From 22 November 2005, a revised Code of Practice on Racial Equality in Employment became available. This is intended to help employers draw up an equal opportunities policy to prevent unlawful racial discrimination. The code will not place any legal duties on employers until 6 April 2006 when it becomes statutory, but it may be taken as evidence in legal proceedings. Download guidance on achieving racial equality in employment from the Commission for Racial Equality website (PDF).

The penalties for race discrimination can be high, both for organisations and individuals, since there is no limit on compensation.

There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, they do not need to have left their employment.

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DISCRIMINATION ON THE GROUNDS OF RELIGION OR BELIEF

DISCRIMINATION ON THE GROUNDS OF RELIGION OR BELIEF

Discrimination against an employee or job candidate on the grounds of their religion or belief became unlawful from December 2003 under the Employment Equality (Religion or Belief) Regulations.

The regulations apply to discrimination on grounds of religion, religious belief or similar philosophical belief. They cover discrimination on grounds of perceived as well as actual religion or belief and the religion or belief of someone with whom the person associates.

As with other forms of discrimination, the new legislation recognises both direct and indirect discrimination on the grounds of religion or belief.

Direct discrimination may occur in areas such as recruitment, selection, training, promotion, selection for redundancy or dismissal when someone is treated less favourably than another because of their actual or perceived religion, religious or philosophical beliefs. An example of this would be where an employee is dismissed on grounds of misconduct for taking leave for a religious occasion.

Indirect discrimination occurs when an employer applies a provision, criterion or practice which disadvantages people of a particular religion or of particular religious or philosophical beliefs and which cannot be justified.

The regulations also outlaw:

  • Harassment - unwanted conduct that violates people's dignity or creates an intimidating or offensive atmosphere
  • Victimisation - treating people less favourably because of something they have done under or in connection with the regulations, eg made a formal complaint of discrimination or given evidence in a tribunal case

There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, they do not need to have left thier employment.

 

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DISCRIMINATION ON THE GROUNDS OF SEXUAL ORIENTATION

DISCRIMINATION ON THE GROUNDS OF SEXUAL ORIENTATION

Discrimination against an employee or job candidate on the grounds of their sexual orientation became unlawful from December 2003.

The Sexual Orientation Regulations apply to discrimination on grounds of orientation towards persons of the same sex (lesbians or gays), the opposite sex (heterosexuals) and the same and opposite sex (bisexuals). They cover discrimination on grounds of perceived as well as actual sexual orientation and the sexual orientation of someone with whom the person associates.

As with other forms of discrimination, the legislation recognises both direct and indirect discrimination on the grounds of sexual orientation. From 5 December 2005, a person who is a civil partner in a registered civil partnership of a same-sex couple should not be treated less favourably than a married person in similar circumstances.  If a civil partner is treated less favourably, they may be able to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations or a claim for sex discrimination. Download a guide on the rights of civil partners from the Women and Equality Unit website (PDF).

Direct discrimination may occur in areas such as recruitment, selection, training, promotion, selection for redundancy or dismissal or in awarding employment-related benefits when someone is treated less favourably than another because they are - or are thought to be - lesbian, gay, bisexual or heterosexual.

Indirect discrimination occurs when an employer applies a provision, criterion or practice which disadvantages people of a particular sexual orientation and which cannot be justified.

From 5 December 2005, indirect discrimination could also occur where a civil partner is treated less favourably than a married employee on a range of employment rights and employee benefits including the right to:

  • make a request for flexible working
  • statutory paternity leave and pay for a newborn child or newly adopted child
  • vocational training
  • access to a benefit that is given to a married employee –such as a pension or private health care

The regulations also outlaw:

  • harassment - unwanted conduct that violates people's dignity or creates an intimidating or offensive atmosphere
  • victimisation - treating people less favourably because of something they have done under or in connection with the regulations, eg made a formal complaint of discrimination or given evidence in a tribunal case

There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, they do not need to have left their employment.

 

Other areas on this subject:

 

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