Fair recruitment is more than best practice – it’s a legal requirement. While many employers are familiar with the principles of equality in the workplace, it’s easy to overlook how far discrimination law stretches, especially when it comes to external job applicants.
The legal framework
Under the Equality Act 2010, job applicants are protected from discrimination at all stages of recruitment. Sections 39 and 40 make it unlawful to discriminate, harass or victimise someone in arrangements for recruitment, including how you advertise roles, shortlist candidates, run interviews, and decide who to hire.
This applies across all protected characteristics – including age, disability, sex, race, religion, and pregnancy. Importantly, the definition of “arrangements” in recruitment is broad. Discriminatory adverts, inaccessible application formats, or inflexible interview processes could all lead to claims.
Practical examples
- A disabled candidate may argue that not providing adjustments for an interview was discriminatory.
- A Muslim applicant might claim indirect discrimination if an assessment day ignored dietary needs.
- A pregnant candidate could claim she was rejected due to assumptions about her future availability.
Even someone who hasn’t applied can claim if a discriminatory advert discouraged them – although they’d need to show they would have applied otherwise.
Who’s liable?
Claims can be brought against employers, employees, or recruitment agencies. Employers may also be vicariously liable for discriminatory actions by others – even if unintentional. For example, an agency that screens out older candidates could land both itself and the employer in legal trouble.
How to stay compliant
- Make hiring managers aware of the risk of discrimination in recruitment.
- Instruct recruitment partners not to discriminate.
- Make reasonable adjustments for disabled applicants.
- Monitor language in adverts and interview questions.
Exceptions and flexibility
You can apply a “genuine occupational requirement” if a role needs someone with a particular characteristic – but this must be justifiable and essential for the job.
Positive action is also lawful where there’s under-representation – for example, preferring one equally qualified candidate over another to improve diversity. But don’t select someone solely based on a protected characteristic if another applicant is better qualified.
Clear processes, staff training, and thoughtful planning will help you recruit fairly and lawfully.
For further information, please contact Kerry Curd in the employment team on 01626 202406 or email KerryCurd@wbw.co.uk.
WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
