Sunday, 12 June 2016

Race discrimination by job agencies – legal Q and A

 Race discrimination by job agencies – legal Q and A

A recent BBC investigation found that to win more business some recruitment agencies in the West of England were prepared to comply with requests from employers to discriminate against applicants from certain ethnic minorities. If the current economic downturn continues, more and more agencies may be prepared to follow suit. What risks do employers and recruitment agencies run in these situations and how should HR handle any issues arising?
Q If an employer tells a recruitment agency it wants someone from a particular ethnic group what law(s) could be breached?
A When dealing with an individual’s job application, section 4(1) and section 14 of the Race Relations Act 1976 prohibit discrimination by employers and by recruitment agencies. The Sex Discrimination Act 1975, Disability Discrimination Act 1995, and the recent Employment Equality legislation all contain similar provisions.
Q Who would be liable if discrimination is proven?
A Liability depends upon the relationship between the employer and the agency. Any acts of discrimination by the agency that are carried out with the express or implied authority of the employer will result in both entities being jointly liable.
Q What is the employer’s liability if the agency discriminates without its knowledge or instruction?
A To escape liability the employer will need to prove that the agency was acting outside its authority. If there is any form of authority, express or implied, the employer may also be liable. It is, therefore, important to ensure as a starting point that the contract governing the employer-agency relationship specifically states that the agency must not act in a discriminatory manner, and that recruiting staff are directed specifically not to try to sidestep this in oral communications with the agency.
Q Who is able to bring legal action against the agency and/or employer?
A An individual who believes they have been discriminated against when applying for a job can present a claim to an employment tribunal within three months of the date on which he alleges the discrimination took place, or on which he became aware of the alleged discriminatory act. This is usually the date on which he receives notification that his application has been unsuccessful. The statutory grievance procedure, which can operate to extend the time limit by a further three months, applies only to employees and so is not applicable to job applicants who are not already employees.
Q What punishment could employers/agencies face if they breach the discrimination legislation?
A Employment tribunal awards for discrimination are uncapped. However, where an individual has been discriminated against in relation to an application, damages are likely to be restricted to the loss of opportunity. This will depend on the tribunal’s view of the likelihood of the candidate getting the job had it not been for the discrimination and an award for injury to feelings.
In Noah v Desrosiers (t/a Wedge) in 2008, the claimant, a Muslim woman who wore the hijab headscarf, was turned down for a position as a salon assistant because the salon owner required all staff to display their hair while at work. The claimant was awarded in excess of £4,000 for injury to feelings and loss of opportunity. Further sector-based action is also possible. Examples include investigation of any law firm found guilty of discrimination by the Solicitor’s Regulation Authority, and public sector bodies are also required to adhere to the race, sex and disability equality duties.
Q What steps should HR take to eliminate discrimination?
A When using a recruitment agency to hire staff, it is important that the employer takes reasonable steps – including in the contract – to ensure the agency acts in accordance with the employer’s equal opportunities policy. Checks should also be made on the agency’s own policies.
Training is also a vital tool available to employers. Anyone responsible for writing role specifications or job adverts should receive training on how to avoid using discriminatory terms in those documents. It is now potentially discriminatory to require applicants to have ’20 years’ experience’ as this could exclude younger applicants. However, asking for ‘the equivalent of 10 years’ experience’ might be lawful. Any experience that is required must be relevant to the role, and any minimum requirements must be justifiable. Any equal opportunities monitoring information (eg, age or ethnic background) should be on a separate document and such information should not be seen by those responsible for selection and recruitment. HR can play a vital role in briefing interviewers to ensure they are aware of their duties.
David Whincup, partner, and Patrick Thomas, lawyer, Hammonds
Race discrimination – Law in practice
XpertHR explains your obligations with regards to the Race Relations Act

Agencies 'happy to discriminate'

Tariq Modood
Professor Tariq Modood said he was surprised by the level of discrimination
Letting agents and employment agencies in the west of England are willing to discriminate against ethnic minority groups, a BBC investigation has found.
Of 30 temping agencies contacted by an Inside Out West researcher, 25 agreed to a request for a receptionist job to be offered only to white workers.
Seventeen out of 30 letting agencies also agreed to discriminate.
Industry representatives said the findings were "unacceptable" and they would take action.
Professor Tariq Modood, of the Centre for the Study of Ethnicity and Citizenship, said: "I'm surprised how many people were willing to go along with a very blatant suggestion of discrimination.
"Past surveys have tended to suggest maybe a third of people will discriminate and you have found that it is greater than that."
'Racial motivations'
Posing as a landlord with a two-bedroom house to rent out, the researcher told the letting agents not to show it to anyone from an ethnic minority background.
A spokeswoman for the Association of Residential Letting Agents, the regulatory body for the industry, said: "A lettings agent simply cannot assist a landlord with refusing a tenant due to racial motivations. would expect agencies to challenge that kind of discriminatory instruction and to walk away from the business if they had to
Tom Hadley - Recruitment and Employment Confederation
"Our code of conduct makes it very clear that any form of discrimination is unacceptable and will not be tolerated."
The researcher also posed as an employer who wanted a temporary receptionist, but insisted the person had to be white.
Among those who agreed to the request was one agency worker who said: "That's fine. You are not allowed to say it but, no, we certainly hear what you say. That's not a problem."
Tom Hadley, of the Recruitment and Employment Confederation (REC), said: "We would expect agencies within the REC membership to challenge that kind of discriminatory instruction and to walk away from the business if they had to - because that is how seriously we take this particular issue.
"It shows there's still a lot of work we need to do. We will not tolerate this kind of discriminatory behaviour."
The full story features on Inside Out West on BBC One in the West region at 1930 GMT on Wednesday.


Recruitment agencies display ‘casual racial discrimination’, alleges charity from ethnic minority backgrounds are not treated by recruitment agencies in an equal way to white candidates, according to Race for Opportunity (RfO).
Research released by the charity today claims that over the past 12 months only 29 per cent of candidates from a black, Asian or ethnic minority backgrounds going through a recruitment agency were offered a job compared to 44 per cent of white applicants.
Furthermore the report, entitled Race and Recruitment: exposing the barriers, stated that just 57 per cent of BAME jobseekers were invited for at least one interview, compared to nearly three-quarters (73 per cent) of white candidates.

The study, which included the experiences of 2,500 job seekers over the course of 12 months, concluded that “casual racial discrimination” from recruitment agencies was “prevalent in the UK”.
Sandra Kerr, director at RfO, said: “Tough economic times and rising unemployment levels mean that the current job market is extremely competitive, with a high number of applications for every role.
“If BAME candidates are not being treated fairly by the recruiters at all stages of the job application process, then they are at a distinct disadvantage from the outset.”
Citing reasons of poor initial contact and responsiveness, and being put forward for roles that do not match their skills set, BAME candidates were found less likely to use a recruitment agency than white jobseekers.
Compared to 88 per cent of white candidates, the study showed that 91 per cent of BAME applicants applied straight to an employer rather than using an intermediary.
Tom Hadley, director of policy and professional services at the REC, has responded to the research by urging industry figures to consider the factors that lie beneath the decision to make a job offer such as qualifications and work experience.
He added: “At the same time, there is always more that can be done to recognise and address unconscious bias and to look at established procedures that may indirectly create barriers for job-seekers.”
“There is absolutely no reason for recruiters to do anything other than put together to best possible short-list.”

Ageism in recruitment

Proving age discrimination in the recruitment process can be difficult‚ as an employer is unlikely to make it obvious that they turned someone down because they were too old‚ or too young.

How do you prove age discrimination in recruitment?

In order to successfully claim age discrimination in relation to recruitment‚ an applicant will need to show evidence that age could have been the reason that they did not get the job. The employer will then have to prove that they did not discriminate against the applicant.
There is a questionnaire procedure that can be used to obtain extra information from employers‚ to help you decide whether you should bring a claim‚ and to gather evidence if you decide to go ahead.
A lack of protection for people over 65
There is an exemption under the law which means that if you are:
  • over 65‚ or
  • over your employer’s normal retirement age if this is over 65‚ or
  • within six months of age 65‚ or the employer’s normal retirement age if this is higher‚ you have no protection against age discrimination when applying for jobs.
An employer will be able to refuse to consider you for a job over this age‚ without having to justify it‚ and you will have no way of challenging or appealing against the decision.
What about job adverts?
Employers should not include age limits in job adverts‚ and should avoid using words which could suggest they are looking for applicants from a particular age group.  For example an advert which states that the company requires a ‘young‚ enthusiastic’ person could be used as evidence of age discrimination.
Can an employer ask for your date of birth?
Employers can still ask for your date of birth. This would not automatically be age discrimination‚ but it could be used as evidence to suggest discrimination if you do not get the job and you believe this is because of your age.
It is good practice for employers to remove the date of birth from the application form and to ask for this on a separate equal opportunities monitoring form instead.  This should then not be seen by the person making the decision on who to shortlist for interview or who to hire.
What about employment agencies?
Agencies have a duty under the law not to discriminate against you because of your age.  They must not deny you access to their services‚ or to particular job placements because of your age (unless they can justify this or it is covered by an exception).
If an employer tells an agency that having a characteristic related to age is a genuine occupational requirement for a particular job‚ the agency can rely on this statement as long as it is reasonable to do so.  It would then be for the employer‚ not the agency‚ to show that age really is a genuine occupational requirement for the job.
If you would like to speak to someone about age discrimination, call the Age Scotland Helpline on 0845 125 9732.

Our Vision and Services

Our vision is of a society where no one should experience discrimination on the grounds of their mental health.

Mental health problems are extremely common across society, with one in four of us experiencing them in any year. Despite being so common, people from all communities will still experience discriminatory attitudes and behaviours that can prevent people from speaking out, seeking support and playing full and active roles in our communities. The impact of mental health stigma and discrimination will vary between communities as mental health has a cultural context that affects the way communities talk about the subject and engage with people who have mental health problems. In some cultures depression, for example, doesn't exist and in others an experience of a mental health problem can be attached to a sense of shame.

For the African and Caribbean communities a key issue is the overrepresentation of young African and Caribbean men in mental health services. Misconceptions and stereotypes have led to a perception that this group is more likely to pose a risk of violent behaviour and, as a result, they are more likely to be treated as inpatients and sectioned when compared to other groups. It is well documented that this has led to a fear of talking about mental health issues more openly and a fear of using mental health services. Research by the Race Equality Foundation (2011) also highlighted fears that discrimination against Black & Minority Ethnic (BME) communities and migrant service users will increase in the austerity climate and whilst commissioning arrangements change.

Our Services

· Provide information, advice, advocacy

· Represent diversity communities in Health Care services, policies and strategies

· Organise training in health and social care in collaboration with local colleges

· Provide human resources ( including interpreters) who are suitable to the diversity communities especially to break language and cultural barriers

· Provides domiciliary care and support

· Provide services such specialised support for people with mental health needs, including people who suffer from short-term memory problems, Dementia and Alzheimer’s Disease.

· Provide visits to elderly people and help them with outings and home services

· Participate in local authority and NHS consultations , research events and programmes to voice the needs of diversity communities.

· Increase access to services and rights for disadvantaged people and the most vulnerable of our society

· Help and support unemployed people to look for work, including training and job preparation

· Provide legal advice in a range of issues from on Immigration and Asylum , welfare benefits, housing, health, education, community care, and training, employment, etc.

· Provide advice and guidance, information and practical help so that our service users can access opportunities they are entitled to

· Organise training and other community learning opportunities that provide new skills, increase confidence and motivation

· Support our service users to overcome barriers to learning, employment and training

· Provide support for young people with their education, training, confidence building, employment and social needs.

Objectives of our Diversity Living Programme:

· To promote the inclusion and participation of diversity communities* in integrated care.

· To inform policy, locally and nationally, and assisting in the formulation of effective policies, strategies and good practices in integrated care in order to contribute to improved health outcomes for the people from the diversity communities (e.g. Black and minority ethnic communities) and to ensure health services are able to meet their specific needs.

· To improve the quality of life for diversity people with disability, mental health problems and their families and carers through integrated care by providing inclusive advocacy and information.

· To provide service that enable diversity groups and individuals with disability /elderly and their carers to make the right choice for themselves and have an influence on decisions made about their future.

· To promote the rights of diversity people with disability, their families and carers and make sure their rights are safe and protected.

· To promoting access to information regarding healthcare issues and to raise awareness of the needs of diversity disabled children, young people, older people and their families.

· To promote the rights of older and disabled diversity people, helping them overcome and enable them to participate in decisions about their future

· To provide support and information to those suffering the isolation and loneliness that can be associated with disability and old age

· To fight against mental health stigma in refugee, black and minority ethnic communities and ensure no one should experience discrimination on the grounds of their mental health or disability.

*Diversity communities are older people, disabled people, Black, Asian, refugees, migrants, asylum seekers and other ethnic minorities.