Will the equalities bill change my practices?

23-Jul-2008

The government's new Equalities Bill carries with it hefty implications for recruiters, which will determine the way that both clients and candidates are handled in the future.

The government wants to go further than the existing legislation and make it lawful for there to be positive discrimination in an attempt to address what it sees as an existing imbalance in the workplace.

Currently it is only unlawful to treat a member of a 'protected group' less favourably on the grounds of a particular characteristic they have. So it would be unlawful not to put an ethnic minority candidate forward for interview due to ethnic origin. There is no requirement to promote such a candidate, only to treat them equally.

However, within the guidelines of the new bill, if two candidates were equally well-qualified and suitable, it would be lawful to make a preference of sex (if they are a woman) or ethnic origin (if they are part of a minority group).

For many recruiters, the bill will position them between a rock and a hard place when selecting candidates for certain clients. Successful placements depend on strong relationships built with the client contact and the true understanding of what they are looking for on behalf of their organisation. As such, building a subconscious profile of what your client is looking for in a candidate may work against the guidelines of the new bill.

It is critical to remember that it is no defence to position yourself as an intermediary simply carrying out instructions; any recruiter would have joint liability with the client if an unsuccessful candidate brought a claim.

There are a limited number of situations where it is lawful for an client to specify a person having a particular characteristic — such as a woman to play a female part in a play — and there is no reason to think that this will change.

Given that the purpose of the new legislation is to redress perceived imbalances in workforces, it is even less likely that it will be possible to justify a particular type of person (male, white, young, able-bodied, Christian etc) being the only type of candidate suitable for you to put forward to a client.

Should a candidate feel that they have been overlooked for a role as a result of positive discrimination, they may decide to go to an Employment Tribunal to address the situation.

For example, if a man and a woman present for the same vacancy, and a recruiter puts the woman forward, the action can only be justified if they were equal in all other significant ways. The unsuccessful man might claim that he was better qualified, and the recruiter had misunderstood his qualifications. Or that he had more relevant experience because of the situations where it was gained.

Recruiters are going to have to take even more care to ensure that they fully understand what each candidate is offering. If they are going to make preference to a person from a protected group they will need to be sure that there is equality in all other ways with unsuccessful candidates. In pay terms greater transparency may also mean less room for negotiation.



In Summary

Client demands and relationships must be managed within the guidelines of the Equalities Bill 

You/your employer would have joint liability with the client if grounds for a tribunal were found

Ensure you do not over compensate in favour of minorities when the bill is introduced. Organisational fit and capabilities should remain the primary focus of candidate placement 

Positive discrimination can only occur if all other attributes, such as education and experience, of potential candidates are equal