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  Foreword
 


This section provides information about the points of legislation that make it an offence to take into account a person’s race, religion, belief, sex (including marital status), disability, age or sexual orientation in considering them for a job.

CSV has an Equal Opportunities Policy which commits the organisation to avoid discrimination. CSV therefore relies on managers and staff to act within the law and, where they are in doubt, to seek advice from the Human Resources team

Where discrimination does occur both you and CSV may be taken before an Employment Tribunal – usually by the person discriminated against. This is time consuming, costly and could present a reputational risk to CSV if the case were successful. It is therefore important both to the organisation and to staff as individuals that the requirements of the legislation are clearly understood.

The recruitment and selection process explained in the following sections of this toolkit was created in line with the legislation and CSV’s Equal Opportunities Policy and if you follow this process you will be in a good position to defend a tribunal claim.

All staff are expected to complete the Diversity e-learning module as part of their induction to give them a basic awareness of the legislation.

 

  Contents

  Legal Framework

 


LEGISLATION

Here you will find a summary of the key legislation which affects recruitment.

Race Relations Act 1976: This Act makes it unlawful to discriminate directly or indirectly on the grounds of colour, race, nationality (including citizenship) or ethnic or national origin, or to apply requirements or conditions which have a disproportionately disadvantageous effect on people of particular racial group and which cannot be justified. An example of this could be a job advert asking for applicants who speak English as their mother tongue.

Race Relations Amendment Act 2000: This Act places a statutory duty on public authorities, or private sector organisations that carry out public functions, to work to eliminate unlawful racial discrimination and to promote equal opportunities and good race relations.

Sex Discrimination Act 1975 (amended 1986): This Act makes it unlawful to discriminate directly or indirectly on the grounds of sex and marital status or to apply requirements or conditions, which have a disproportionately disadvantageous effect on people of a particular sex or marital status where these cannot be justified. An example of this could be stating a preference for a man or a woman in a job advertisement such as requiring a male caretaker or female carer.

Sex Discrimination (Gender Reassignment) Regulations 1999: This extends the sex discrimination Act 1975 to cover discrimination on grounds of gender reassignment (transexualism) in cases where an individual is treated less favourably by another person on grounds that the individual intends to undergo, is undergoing or has undergone, gender reassignment.

The requirement for equal pay is contained in the Equal Pay Act 1970.

Disability Discrimination Act 1995: The Act makes it unlawful to discriminate against a person with disabilities. Disability is defined as 'a long term physical or mental condition which has a substantial adverse effect upon a person's ability to undertake normal day to day activity'. There is a positive duty to provide necessary reasonable adjustments.

Disability Discrimination Act 2005: This extends the disability discrimination act to cover people who have HIV, cancer and multiple sclerosis from the moment they are diagnosed. It also requires public bodies to promote equality of opportunity for disabled people. An example of this could be not considering a visually impaired person for a job because it involves working with computers.

The Rehabilitation of Offenders Act 1974: Applicants may withhold information about convictions which are 'spent' however some positions are exempt from this, such as positions which involve working with vulnerable people when all convictions, cautions etc must be declared.

Human Rights Act 1998: The Act gives further effect to rights and freedoms guaranteed under the European Convention of Human Rights. Article 14 affirms the prohibition of discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Employment Equality Regulations (Religion or Belief) 2003
Employment Equality Regulations (Sexual Orientation) 2003

These two sets of regulations outlaw discrimination in employment on the grounds of religion, belief or sexual orientation. They outlaw direct and indirect discrimination against job applicants. They cover discrimination on grounds of perceived as well as actual religion, belief or sexual orientation as well as discrimination of individuals by association, i.e. being discriminated against on the grounds of the religion, belief or sexual orientation of those with whom a person associates.

Age Discrimination Act 2006: This act outlaws direct and indirect discrimination in recruitment, promotion and training on the basis of actual or perceived age unless it can be objectively justified. Where a job applicant is already over 65 or the employer's normal retirement age (whichever is higher), or will reach that age within six months of their application, it will not be unlawful to treat them less favourably on the basis of age.

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TYPES OF DISCRIMINATION

Sex, race, sexual orientation, religion or belief and age

There are two types of discrimination – direct and indirect. It is important that you have an understanding of what direct and indirect means in the context of recruitment and selection.

Direct Discrimination: Direct discrimination means treating a person less favourably than another, purely on the grounds of sex, sexual orientation, race, gender reassignment, religion or belief or age. For Example:

  • Not recruiting someone because of their ethnic origin on the assumption that they won’t fit in with the rest of the team.
  • Not promoting an applicant because she is a woman and may have childcare commitments that interfere with work.
  • Not short listing someone because they are gay.
  • Deliberately harassing someone because of their religion or belief.

Indirect Discrimination: Indirect discrimination consists of applying a requirement or condition which, although applied equally to all persons, is such that a considerably smaller proportion of a particular group can comply with it and it cannot be shown to be justifiable. For Example:

  • A height requirement of 6ft 2ins in a job advertisement which is not necessary to do the job. Women are normally shorter than men and are therefore placed at a disadvantage.
  • An insistence that employees must not have beards. Unless there is an objective job related reason for the rule (for example hygiene rules in food processing jobs) then this may discriminate indirectly against people whose beliefs forbid them to shave (e.g. Sikhs).
  • Asking questions relating to marital status, family and childcare responsibilities. Asking the same questions of both sexes does not ensure non-discrimination. The use of the information may still be discriminatory.

Disability

The Disability Discrimination Act (DDA) 2005 makes discrimination against disabled people unlawful in respect of employment, education, and access to goods, facilities, services and premises.

  • A disabled person is: Anyone who has a physical or mental condition or mental illness which has lasted, or is likely to last for at least 12 months and adversely affects their ability to carry out normal day to day activities.
  • The DDA applies to the whole of the UK , including Northern Ireland in relation to employment;
  • The act applies to all employers.

Disability legislation is different to other legislation in the way it defines discrimination.

Less favourable Treatment

Under disability legislation an employer discriminates against a disabled person if:

  • For a reason that relates to a disabled persons disability, the employer treats them less favourably than they treat or would treat others to whom that reason does not or would not apply, and
  • the less favourable treatment cannot be justified.

An example of less favourable treatment is that, despite having all the qualifications for a job, you refuse to interview an applicant without offering any justification, when you found out they had a hearing impairment.

Failure to make a reasonable adjustment

Under disability legislation, an employer discriminates against a disabled person if they fail to make a reasonable adjustment to the working environment, working arrangements or working conditions to help a disabled person overcome the practical effects of their disability and that failure cannot be justified.

An example of this may be a candidate who is a wheelchair user, applying for a job in an inaccessible office. It might be a reasonable adjustment for the employer to make the office accessible or allow them to work in an already accessible office. If so, the employer could only justify not making the reasonable adjustment if they had a substantial and material reason. However, generally speaking if an adjustment is reasonable it is unlikely to be possible to justify not making it.

The types of consideration that may be taken into account include:

  • how much an alteration will improve the situation for the disabled employee or applicant;
  • how easy it is to make the change;
  • the cost of the measure, both financially and in terms of the disruption it will cause your resources;
  • the financial help, or other help, which may be available.

The best advice when considering what adjustment might be needed is to discuss it with the person involved.

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GENUINE OCCUPATIONAL REQUIREMENTS

A genuine occupational requirement makes it lawful for an employer to discriminate on the grounds of sex, race, sexual orientation, religion or belief and age where being of a particular sex, race, sexual orientation, religion or belief or age is integral to the job.

An example of this is where an Asian women’s refuge advertises for an Asian female for a role involving working closely with their clients.

CSV does not have any positions where genuine occupational requirements apply, however if you think you have a role where they do, please discuss this with the HR team.

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Updated October 2009

 

Community Service Volunteers (CSV)
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