When hiring it’s usually against the law for an employer to discriminate against job applicants because of any of the following, known as ‘protected characteristics’:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
2. Trade union membership
An employer must not treat you unfavourably because you are, or are not, a trade union member.
It’s against the law for an employer to victimise someone. Victimisation is when someone is treated badly because they’ve done things like:
- saying that they believe discrimination has happened, to themselves or anyone else
- providing information about discrimination they believe has happened
- challenging someone because they believe discrimination has happened
When someone breaks the law on protected characteristics – for example, an employer chooses not to hire someone because of their race – it’s known as direct discrimination.
Some forms of discrimination in the workplace are 'indirect'. This means that there are rules or arrangements that apply to everyone, but which in practice could be less fair to someone with a protected characteristic. You could be breaking the law if you discriminate indirectly.
An organisation is recruiting for a head of sales. They only advertise the role internally. The potential applicants in the organisation are all men. They could therefore be discriminating indirectly against women.
When employers can ask about protected characteristics
In certain circumstances an employer can ask questions about a protected characteristic, such as disability or race. If they do this they have to follow the law.
Common examples are:
- asking if you need 'reasonable adjustments' because of any disability you have
- asking you to voluntarily complete a form to help check that the business is following the law (often called an equality monitoring form) – anyone who’s interviewing or making a decision to hire you must not have access to this information
Other questions about a protected characteristic could be against the law - you can call the Acas helpline for help to understand if a question you’ve been asked is legal.
If an employer has viewed your social media profile
If an employer has viewed your social media profile before they made a decision related to hiring you (such as choosing whether or not to interview you), they could have discriminated against you.
This is because they may have formed an opinion that relates to a protected characteristic, such as disability or race, or an opinion that’s unrelated to your ability to do the job.
You’ve applied for a job. The employer happens to come across your profile on Facebook and discovers a photo that confirms your race. It could be that they’ve unintentionally made up their mind about you before interviewing you for the job.
The employer can make a decision based on your social media profile if they can prove it’s crucial to the job requirements.
For example, if you apply for a job as a social media manager, the employer may need to see your Facebook profile to understand how you use social media.
Take care with your personal information
If you’re concerned about the information that potential employers may come across, it’s a good idea to check:
- the privacy settings of your social media profile
- any information that an employer could see without clicking on your profile, such as your profile picture
Be careful about any information you include on jobs websites, or social networking sites that focus on business (for example, LinkedIn). An employer could argue that they’re justified in using this information, as it reflects your professionalism and employability.
When a protected characteristic is crucial for the job
In some cases the employer can ask for a protected characteristic, such as disability or race. They can only do this if they can prove it’s crucial in order to do the job effectively.
For example, a care worker agency could ask for female applicants, if the person being cared for is female and has said she would be uncomfortable in receiving this type of care from a man.
When a group is disadvantaged or under-represented
In some cases employers can legally use a protected characteristic to decide who they employ. They can only do this if they want to increase applications from a group that’s disadvantaged or under-represented in their business. This is sometimes known as 'positive action in recruitment and promotion'. They must still be able to prove that the person they hire is capable of doing the job.
A business has 10 salespeople who are all men. After interviewing for another salesperson, the business finds that 2 applicants are equally able to do the job. One of the applicants is a man and the other is a woman. The business chooses to hire the woman, because she is able to do the job and women are not represented in the existing workforce.
You can call the Acas helpline if you have questions about a protected characteristic, such as disability or race, that an employer is asking for.