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

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