Discrimination in Recruitment: How to Avoid Discriminatory Advertisements

It is important that employers are mindful of their obligation to carry out a recruitment and selection process that is non-discriminatory in nature. Employers should therefore allocate sufficient time and care when publishing job advertisements so as not to be caught out – there is no cap on damages awarded at the Employment Tribunal for a successful discrimination claim so any mistake could prove very costly.

As a
starting point, a job advertisement must not discriminate on the basis of any
of the nine protected characteristics as defined under the Equality Act 2010,
which as a refresher are:

Can a negative reaction to a refusal to shake hands constitute discrimination on grounds of religion?

The internet is riddled with articles detailing the importance of a good handshake, but just how vital is it for the proper performance of your duties at work? A Swedish, Muslim, woman has been awarded compensation after her job interview for a role as an interpreter was terminated when, due to religious grounds she would not shake hands with her potential employer.

When the male interviewer extended his hand in greeting as is traditional in Europe, Farah Alhajeh, 24, instead placed her hand over her heart. The response was her way of greeting the interviewer in a way that also aligned with her religious beliefs.

Some Muslims avoid physical contact with members of the opposite sex (except for in cases of emergency, or when there is a ‘special relationship’ present – i.e. the individual in question is their partner or a blood relative). This is why Ms Alhajeh offered an alternate greeting – there was no such special relationship between Ms Alhajeh and her interviewer, so she placed her hand on her heart, as is commonly done by those who share the same belief.

In handing down the judgement, the Swedish Labour Court (similar to the Employment Tribunal in the United Kingdom), had to balance the employer’s interest with the individual’s right to bodily integrity and the importance for the state to maintain protection for religious freedom.

The company’s main argument hinged on the fact that it was an established workplace policy that men and women were to be treated equally, and as such they could not allow a staff member to refuse a handshake based on gender.

Is sacking an employee who has miscarried an act of pregnancy-related discrimination?

Employment Law book Earlier in my legal career, I helped advise an individual who was subjected to detrimental treatment by her employer due to time off linked to a miscarriage. Naturally, I won’t identify the individual or the specific facts here but, save to say, their employer’s conduct made a very difficult situation even more stressful.

The biggest surprise I experienced during that case was their employer trying to argue that a miscarriage wasn’t pregnancy-related under the Equality Act 2010 because the employee wasn’t pregnant anymore. This is completely incorrect. Why?

Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination. Background The facts of the case were that the Government Legal…

Does a ban on wearing headscarves amount to direct discrimination?

In a somewhat surprising decision, given the views expressed in some other recent cases, the Court of Justice of the European Union (CJEU) has decided that a ban on wearing headscarves at work does not (necessarily) constitute direct discrimination with reference to religion or belief. In  Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v…

Indirect religious discrimination

Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?   This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903.  The facts of this case were…

Age Discrimination & Permanent Health Insurance

Since the abolition of the default retirement age some time ago, questions have arisen regarding what happens to employee benefits should they decide to remain in employment over a certain age. In the recent case of Smith v Gartner UK Ltd, Ms Smith (the Claimant) was absent from work on the grounds of sickness and…

Online assessments and discrimination

There is an increasing tendency for employers to use online services in order to carry out HR related functions, including assessments, job interviews and appraisals. This can be daunting even for the most confident and well-equipped candidates and employees. I have recently witnessed such a process in action, with an international employer using an American…