Avoiding unlawful discrimination when you are offering promotion or transfer opportunities
You must offer opportunities for promotion, transfer or other career development without unlawful discrimination. This includes development opportunities that could lead to permanent promotion – for example, ‘acting up’ on temporary promotion, deputising or secondment.
Visit the Core guidance to make sure you know what equality law says you must do as an employer.
Promoting or transferring a worker is very similar to recruiting them in the first place. If you want to know more about this, read the section on Recruitment.
There are steps you can take to help you make sure you are not taking people’s protected characteristics into account in a way that equality law does not allow.
Although equality law does not require you to advertise vacancies or opportunities for promotion either inside or outside your organisation, doing this may help you avoid unlawful discrimination.
An employer promotes a male worker to a post without advertising the vacancy internally. There are female workers who are qualified for the role and would have applied if they had known about it. They have missed out on an opportunity and if they can show either that the employer ignored them just because they were female (which would be direct discrimination) or applied a requirement to the role which had a worse impact on the female workers and which the employer could not objectively justify and this was why the employer did not consider them (which would be indirect discrimination), then the employer may find themselves facing a tribunal claim.
You must not deny a woman promotion opportunities because she is pregnant or on maternity leave. If a woman is on maternity leave, she must be considered for promotion in the same way as any other worker who is not on leave.
To avoid unlawful discrimination, you should tell women about promotion opportunities when they are on maternity leave, and give them the opportunity to apply for any promotion they would have been told about had they been at work.
You should avoid making assumptions about women when promoting. Acting on an assumption that a woman with children will be unreliable, inflexible or not interested in a demanding role, and therefore unsuitable for promotion, would almost certainly be unlawful direct discrimination because of sex.
Equality good practice: What can you do if you want to do more than equality law requires
- Treat promotion and transfer opportunities like a job vacancy and use the same procedures, even if you only decide to look at internal candidates. You can find out more about equality law and recruitment.
- This does not need to take as long as an external recruitment, but it will be worth you taking the time necessary to make sure you get the best person, even if this takes slightly longer than just picking someone because you know their work.
- Even in a small organisation, telling every worker about a promotion or transfer could mean that someone whose skills are not already known about comes forward and turns out to be the best person for the job.
- Think about how you tell people about promotion and transfer opportunities. Letting as many people as possible in your organisation know about an opportunity and what’s involved may mean you increase the number of suitable applicants.
- If an immediate promotion is absolutely necessary, make this temporary and then fill the post permanently, and openly, through the organisation’s normal recruitment or promotion procedures. Otherwise, there may be workers who would be able to say they have been treated worse than the person who has been given the temporary promotion, because thsey were not considered. If they can show that this was because of a protected characteristic, this may be unlawful discrimination.
- Use a job description and person specification – and other more ‘formal’ processes like an application form, because:
- This can make it easier for you to make sure you are not discriminating against people
- They help you to focus on what the job involves and the skills, knowledge and experience someone needs to do the job well
- You are less likely to get distracted by irrelevant factors, such as someone’s protected characteristics
- This makes it more likely you’ll get the right person for the job – the person who can do it best – and can also help you avoid tribunal claims.
- If you decide to use a job description and person specification, make it clear what the job involves and the skills, qualifications and experience you are looking for. Write in plain language
- In the job description, if you use one to say what the person who gets the job will be doing, avoid unnecessary tasks or overstated responsibilities or jargon, acronyms and abbreviations, which may exclude people who don’t understand what they mean – unless understanding special words is a necessary part of the job.
- If a disabled person applies for the job, the law requires you to make reasonable adjustments to remove barriers to their being able to do the job. This will be easier if you:
- Write the job description in a way that lists what the job is for and the results which the person doing it should produce
- Focus on what the job requires not how the job will be done as the reasonable adjustments might be for the person to do the job in a different way, but producing just as good results.
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