Recruitment and selection: what the law says 

 

Sex Discrimination Act

The Sex Discrimination Act makes it unlawful for an employer to discriminate because of a person's sex or marital status when appointing someone to a post:

• in the arrangements made for deciding who should be offered the job (see below)
• in relation to any terms offered, such as pay, holidays, or working conditions
• by rejecting an applicant or by deliberately avoiding consideration of an applicant.
• the 'arrangements' for deciding who should be offered a job include:
• the job description
• the person specification, which is an assessment of the essential skills, experience and qualifications required to carry out the jo
• the advertisement (this includes staff notices and circulars, jobs advertised in shop windows, as well as newspapers and magazines, the internet, TV and radio)
• the application form
• short listing
• the interview
• final selection.

Under the Civil Partnerships Act, civil partners have the same rights as married partners.

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Exceptions to the Sex Discrimination Act

In certain limited circumstances it is lawful to discriminate in recruitment, training, promotion and transfer in a job for which the sex of the worker is a genuine occupational qualification (GOQ). The Sex Discrimination Act allows an employer to restrict applications for a vacancy to women (or men) if the essential nature of the job, or particular duties attached to the job, calls for a woman (or a man).

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Code of Practice on sex discrimination

There is a published Code of Practice on Sex Discrimination: Equal Opportunities Policies, Procedures and Practices in Employment [link to PDF of Code]. The Code gives guidance to employers, trade unions and employment agencies on measures which can be taken to achieve equality between men and women. The Code includes a recommendation to employers that they establish and use consistent criteria for selection, training, promotion, redundancy and dismissal. It advises that without this consistency, decisions can be subjective and leave the way open for unlawful discrimination to occur.

The Code recommends that:
• You should be assessed according to your personal capability to carry out a given job. It should not be assumed that men only or women only will be able to perform certain kinds of work.
• Any qualifications or requirements applied to a job which effectively inhibit applications from one sex or from married people should be retained only if they are justifiable in terms of the job to be done.

A failure on the part of an employer to observe the Code would not by itself prove sex discrimination. But where it appears relevant, a tribunal will take the recommendations of the Code into account when reaching a decision in a sex discrimination case.

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