3. Using protected characteristics
When recruiting, in some circumstances you can use protected characteristics to help a disadvantaged or an underrepresented group. This can also help your organisation to be more diverse and representative, as well as widening the talent pool you recruit from.
It's important to know what is possible and what could be against the law. Your action must not cause 'detriment' to another protected group.
Detriment means someone is treated worse than someone else. For example, someone does not get through the CV sifting stage because you saw they have a certain protected characteristic.
Example of using a protected characteristic in recruitment
After identifying underrepresentation within your company you decide to take steps to increase diversity of sexual orientation.
You put your job advert in a national newspaper, on social media and in a magazine with a largely LGBT+ readership. This could mean that more LGBT+ people might see the advert and apply for the job.
It does not cause detriment to any group of people who are less likely to read that magazine because you're also advertising in other places.
Using positive action during recruitment
Under the law, in very rare circumstances when recruiting, it might be possible to use 'positive action during recruitment'. This is when you use a protected characteristic as a reason for hiring one person over another.
It only applies when 2 candidates are otherwise of equal merit and you need a tiebreaker. It should only be used as a last resort after you have exhausted all other non-discriminatory ways of deciding between the 2 candidates.
You can only do this when all the following apply:
- you've reached the stage of recruitment where you're deciding who gets the job
- you're deciding between 2 or more applicants who are otherwise equally able to do that job
- the positive action is a proportionate means of achieving the aim of overcoming or minimising the relevant disadvantage
If you use positive action as a tiebreaker, you must be able to prove it's because either:
- an applicant with the protected characteristic is disadvantaged because of it
- people with the protected characteristic are under-represented in that job
If you do use positive action as a tie-breaker, you must not automatically make the same decision again when hiring in the future. You must make your hiring decisions based on the circumstances of each case and the merit of each applicant.
Example of positive action in recruitment
You select a female job applicant over a male applicant who did equally well in the application process and is equally qualified.
You do so because your business has a goal of increasing participation of women in that role and you have evidence of underrepresentation of female candidates.
'Positive discrimination' is when an action gives more favourable treatment to members of a disadvantaged or underrepresented protected group of people and causes detriment to another protected group.
Positive discrimination is against the law unless there is:
- a disability exception
- an occupational requirement
Example of positive discrimination
Alex is aware that people from an Indian background are underrepresented in their business. Alex interviews 2 people for a role and hires the applicant with an Indian background to address that underrepresentation. The other, non-Indian, applicant was assessed as more suitable for the role.
This could be discrimination because the decision was based on the person's ethnicity and it disadvantages anyone applying for the job with a different ethnic background.
If there's a disability discrimination exception
It is not possible for a non-disabled person to claim disability discrimination under the law.
This means you can treat a disabled person more favourably compared to a non-disabled person.
You can specifically advertise for and recruit a disabled person without the risk of disability discrimination.
This can be a useful approach to help increase representation of disabled people in your workforce.
Comparing with other disabled people
The law only applies when comparing a disabled person with a non-disabled person, not specific disabilities.
This means if you specify a disability, there could be a risk of disability discrimination.
If you need to hire a person with a specific disability, it is important that one of the following applies:
- there is an occupational requirement
- you are using positive action during recruitment where candidates are otherwise of equal merit
Find out more about disability discrimination
Example of when the disability discrimination exception would apply
A mobility aid company is advertising for a new role and decides to say that only disabled people can apply.
Someone who is non-disabled applies for the role and is rejected for that reason. That person could not challenge the company's decision on the grounds of disability discrimination. This is because being non-disabled is not protected under the law.
Example of when the disability discrimination exception would not apply
The company says in their advert that only people with mobility-related disabilities can apply.
Someone with a hearing disability applies for the role but is rejected because they do not have a disability connected to their mobility.
In this case the applicant might be able to make a claim for disability discrimination. This is because they were rejected based on their particular disability, not disabilities in general.
However, if experience of mobility issues is essential to the role, there could be a genuine occupational requirement that justifies the decision.
If there's an occupational requirement
In some cases an employer might be able to justify that an applicant needs a certain protected characteristic to do a particular job. This is known as an 'occupational requirement'.
For it to be an occupational requirement, both of the following must apply:
- the protected characteristic is essential for and relates to the main tasks of the job
- there is 'objective justification' – this means you're able to prove there is a good business reason
Example 1 of when there could be an occupational requirement
A refuge for women who have experienced domestic violence advertises for a female support worker.
Even though sex is a protected characteristic, this could be justified as the refuge has evidence from their residents that they only feel safe with female support workers. The refuge reviews the requirement regularly.
Example 2 of when there could be an occupational requirement
A TV company advertises for an actor who's black and male to play a specific role. Even though race and sex are protected characteristics, this could be justified if there's a need for realism and authenticity in the TV programme.
Recruiting the same job in the future
If an occupational requirement is justified for recruiting a role, you must not assume it will be again if you recruit for the same role in the future. You must check the requirement is still within the law.
Contact the Acas helpline
If you have any questions about using protected characteristics in recruitment, contact the Acas helpline.