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
personneltoday.com/42548.article
XpertHR explains your obligations with regards to the Race Relations Act
personneltoday.com/40950.article
Agencies 'happy
to discriminate'
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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.
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. |
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We
would expect agencies to challenge that kind of discriminatory instruction
and to walk away from the business if they had to 
http://news.bbc.co.uk/1/hi/england/7826077.stm
Recruitment
agencies display ‘casual racial discrimination’, alleges charity
Monday, February 13, 2012
0
Comment
Jobseekers 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.
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.
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.
