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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Professor Tariq Modood said he was surprised by the
level of discrimination
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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.
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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 
Tom Hadley - Recruitment and Employment Confederation
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"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.
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Recruitment
agencies display ‘casual racial discrimination’, alleges charity
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.
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.
