Equality and diversity in recruitment and selection
What diversity means
Equality of opportunity can seem quite a complex area and recruiters and employers can often look at it from a defensive, legal compliance position.
Diversity takes a wider and more positive outlook. There is still a need to ensure discrimination and stereotyping play no part in the recruitment and selection process. But as important is valuing differences between people and understanding the positive benefits for the University of employing a diverse range of talented people.
A positive approach to diversity allows you to select the best person for the job based on merit alone and free from bias on the grounds of factors such as age, disability, gender or race that are not relevant to the persons ability to do the job.
Employers that take this approach are more likely to be seen as a fair, positive and progressive place to work by the diverse society that they are part of. This philosophy underpins the University's Equality and Diversity policy.
"Everyone is different and unless employers take diversity seriously they will fail to recruit, retain and engage the commitment of the talent needed to sustain and improve performance" (Chartered Institute for Personnel and Development)
The legal angle does need to be taken seriously though as there are an increasing number of specific areas of discrimination covered by legislation. Decisions that fall foul of the law can be costly for the University in terms of bad publicity and financial penalties but also time-consuming and stressful for the individuals involved, and that could be you!
You don't need to be an expert on all aspects of anti-discrimination legislation and case-law but you do need to understand:
- the principles of what constitutes potentially direct and indirect discrimination in the recruitment process;
- and why a positive approach to diversity is the best way to avoid problems and attract a wider range of suitable candidates.
Avoiding discrimination and adopting a positive approach to diversity
Following the principles and practices outlined in the University's Guidance on the Recruitment and Selection Process will help you to put this into practice. You will also find it useful to consider the information on the general legal position outlined below and some specific and practical actions to avoid discrimination and adopt a positive approach to diversity.
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The general legal position
Some key facts
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The Equality Act 2010 protects people in employment from discrimination, victimisation, harassment or any other detriment because of any of the following ‘protected characteristics’ – disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sexual orientation, sex, and age.
- Legislation covers direct and indirect discrimination, as well as discrimination by association or perception.
- Burden of proof is with the employer to show that they haven't unlawfully discriminated on the grounds of the factors covered by the legislation.
- Individuals can make a claim to an Employment Tribunal, where the overall average award in discrimination cases is £20k There is no upper legal limit on the amount of compensation that can be awarded in such cases.
- Individuals who take discriminatory actions or decisions are potentially accountable as well as the organisation, provided that the organisation can demonstrate it took all reasonable steps to prevent the employee from discriminating, harassing or victimising someone.
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The Equality and Human Rights Commission was formed in October 2007 to promote and monitor best practice and legal compliance in all areas of diversity and equal opportunities. It is a new commission incorporating the former Equality Opportunities Commission, Commission for Racial Equality and the Disability Rights Commission.
- The Commission produces Codes of Practice. How well employers have adhered to the Codes is considered by Tribunals in deciding outcomes of cases.
Direct discrimination
Definition: Less favourable treatment of a person compared with another person because of a protected characteristic. The new definition of direct discrimination extends protection based on association and perception, already applicable to race, sexual orientation and religion or belief, to include age, disability, gender reassignment, sex and pregnancy and maternity.
Examples:
- not employing a woman because of concerns that she might want to start a family.
- not considering a disabled person without looking at whether they meet the selection criteria and whether any reasonable adjustments can be made.
- not employing somebody because staff believe him to be homosexual, irrespective of whether he is homosexual or not – this is still direct discrimination because of sexual orientation.
- not considering a person for a job because they care for a disabled child
Indirect discrimination
Definition: Occurs when a provision, criterion or practice is neutral on the face of it, but its impact particularly disadvantages people with a protected characteristic, unless the person applying the provision can justify it as a proportionate means of achieving a legitimate aim. Indirect discrimination applies to all of the protected characteristics, apart from pregnancy and maternity.
Examples:
- using word of mouth and informal networks as the primary source for senior academic appointments is likely to disadvantage groups who are currently under-represented at this level, e.g. black and minority ethnic (BME) or female candidates.
- including a specific academic qualification in the selection criteria, excludes those who have achieved an equivalent standard of knowledge and skill through another, equivalent route.
Positive action not positive discrimination
The legislation encourages employers to take positive action to ensure they can recruit and retain people from under-represented groups as long as this does not mean less favourable treatment for other people. For instance:
- Including statements encouraging applications from under-represented groups.
- Targeting advertising to reach under-represented groups.
- Promoting employment opportunities at job-fairs and open days in under-represented communities.
- Encouraging more 'women and family friendly' flexible-working patterns.
But positive discrimination, treating those from under-represented groups more favourably to the exclusion of others is not lawful.
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Other relevant legislation
Asylum and Nationality Act 2006
- Introduced a new Points Based System (PBS) for economic migration into the UK.
- Introduced a legal responsibility for employers to prevent illegal migrant working in the UK.
- Stipulates the civil penalties that employers are liable to pay for committing the offence of employing an illegal migrant worker.
- Recommends that employers conduct basic document checks on every person they intend to employ to ensure that they only employ people who are legally entitled to work in the UK, and to establish a legal ‘excuse’ against liability for payment of a civil penalty if an illegal worker is erroneously employed.
- Also covers employer responsibilities for tracking and monitoring the immigration status of migrant workers once employed, and reporting unauthorised absence.
Rehabilitation of Offenders Act 1974
- Anyone with a spent (i.e. time expired) criminal conviction does not have to declare it when applying for a job and it is unlawful for the employer to discriminate on the grounds of the conviction.
- It is lawful for an employer to request that applicants declare unspent convictions and to take these into account in a fair and transparent way before offering employment.
- Spent convictions can only be considered where a job requires a Disclosure and Barring Service (DBS, formally Criminal Records Bureau) check due to working with children or vulnerable adults.
The University has a policy and procedure on employing people with criminal records and DBS checks.
European Human Rights Convention
Encompasses all of the above within its wide remit.
There are several other pieces of legislation that make it unlawful to treat different kinds of workers unfavourably to others in a number of areas relating to employment, including:
Maternity and Paternal Leave Regulations 1999
Part-time Workers (Prevention of less favourable treatment) Regulations 2000
Fixed Term Workers Regulations 2002
