Recruiters obligations under the Equality Act FAQs
- Summary
- Introduction to the Equality Act 2010
- Disability
- Gender reassignment
- Marriage and Civil Partnerships
- Pregnancy and maternity
- Race
- Religion or belief
- Equality Act 2010- Sex
- Sexual Orientation
- Recruiters obligations under the Equality Act FAQs
- Remedies under the Equality Act 2010
- Gender pay gap reporting
What specific provisions apply to employment agencies and employment businesses under the Equality Act?
As set out in the Equality Act 2010 background section an employment business can be an employer under the Equality Act. Therefore all of the provisions referred to in the Legal Guide that applies to ‘employers’ will apply to employment businesses.
In addition to the general employer provisions, employment agencies and employment businesses are also subject to specific provisions in the Equality Act, i.e. those that apply to ‘employment service-providers.’
The reference to an ‘employment service provider’ in the Act includes businesses and organisations that provide vocational training as well as those that provide services to find employment for people or to supply employers with workers. In this section we will look at the way that these provisions apply to employment agencies and employment businesses.
An employment service provider must not discriminate against anyone:
- in the arrangements it makes for selecting who to provide its services to or who to offer to provide its services to;
- as to the terms on which it provides or offers to provide its services;
- by terminating the provision of services to a person or by subjecting a person to any detriment.
- by not providing its services or by not offering to provide its services
- by subjecting a person to any other detriment.
What is meant by direct discrimination?
An employment service provider directly discriminates against a person if, because of a protected characteristic, it treats the person less favourably than it treats or would treat someone else. Treating someone less favourably means treating them badly in comparison to others.
What is meant by indirect discrimination?
An employment service provider directly discriminates against a person if, because of a protected characteristic, it treats the person less favourably than it treats or would treat someone else. Treating someone less favourably means treating them badly in comparison to others.Indirect discrimination occurs when an employment service provider applies a provision, criterion or practice (PCP) to everyone but this results in people who share a protected characteristic being placed at a disadvantage in comparison to those who do not have the protected characteristic. If the employment service provider can objectively justify the application of the PCP this will not amount to discrimination.
Do the harassment and victimisation provisions in the Equality Act 2010 apply to employment service providers?
Employment service providers are also prohibited from harassing or victimising those who seek to or who use their services.
Harassment
Harassment is defined as unwanted conduct that relates to a protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. This includes unwanted conduct of a sexual nature.
Protection in respect of harassment applies to the following protected characteristics:
- Age;
- Disability;
- Gender reassignment;
- Race;
- Religion or belief;
- Sex; and
- Sexual orientation.
Note that the protected characteristics of pregnancy and maternity and marriage and civil partnership are not included.
For example if an older person sought to register with an employment business for driving work and was subjected to offensive jokes about his age and told that he was ‘past it’ for driving, this would amount to harassment.
Victimisation
Victimisation occurs when an employment service provider treats a person unfavourably (badly) because the employee has either done, or the employee thinks that the employee has done, a ‘protected act’.
‘Protected acts’ include bringing a claim for unlawful discrimination or raising a grievance about discrimination or giving evidence in respect of a complaint about discrimination.
In the same example (above) if the driver said that he was going to raise a complaint about the individuals who made the offensive jokes and as a result they decided not to put him forward for any assignments, this would amount to victimisation.
What liability arises if an employment agency or business acts on a discriminatory instruction from a client?
If a client gives an employment agency or business an instruction which is discriminatory and this is acted on, the client as well as the employment agency or employment business may be liable for the discrimination.
For example if a client tells an agency that it needs to fill a role but it does not want any women put forward as they are likely to need time off for pregnancies, this would be a discriminatory instruction. If the agency then selected only males from the candidates it has registered to put forward for interview, then it would be discriminating against the female candidates it has registered. The client could be liable for discrimination (in the arrangements it is making to decide who it should employ) and the client can also be held liable for the actions of an agent acting on its behalf (i.e. the agency).
How does the Equality Act 2010 apply to advertising?
The placing of a discriminatory job advertisement is not specifically unlawful under the Act (as was the case in relation to some of the individual strands of discrimination prior to 1 October 2010). However, under the Act an employment service provider can be liable for discrimination if the wording used in an advertisement indicates that there is an intention to discriminate because of a protected characteristic. This could give rise to direct discrimination if an applicant is actually deterred from applying for a job or from seeking to apply to use the employment service provider’s services.
Can employment agencies and employment businesses rely on occupational requirements (general exceptions)?
Employment service providers are able to rely on the same occupational requirements in respect of each protected characteristic as those that apply to employers. These are set out in the sections of the Legal Guide available here.
If there is an occupational requirement for a person to have a particular protected characteristic, the employment service provider is permitted to restrict its services to those who meet that requirement. (Note that the application of occupational requirements to the protected characteristics of gender reassignment and marriage and civil partnership, means that there is a requirement that the person is NOT a transsexual person and NOT a married person nor civil partner, respectively).
What additional exceptions apply to employment services providers?
When taking instructions from a client to supply or introduce a person for a role, the Act provides protection to an employment service provider if the client’s instruction ultimately gives rise to unlawful discrimination.
An employment service provider has a defence against a claim of discrimination if it reasonably relies on a statement made by a client that it would not amount to unlawful discrimination to require a person to have a protected characteristic because an occupational requirement applies.
This only applies if it is reasonable for the employment service provider to have relied on the client’s statement.
A client will be guilty of an offence if it knowingly or recklessly makes such a statement to mislead an employment service provider.
Although the Act does not specify that this statement should be given in writing, it is advisable that employment service provider to seek written confirmation from their clients in respect of any requirement that a person who is to be supplied or introduced has a particular protected characteristic.
What obligations do employment agencies and employment businesses have to make reasonable adjustments for disabled work seekers?
Employment agencies and businesses have the same duty as employers to make reasonable adjustments for disabled persons who use or seek to use their services.
- An employment agency or business must take steps to avoid the disadvantage caused to a disabled person by any provision, criterion or practice which places the disabled person at a disadvantage.
- If a physical feature puts a disabled person at a disadvantage an employment agency or business is required to take reasonable steps to avoid the disadvantage.
- An employment agency or business must provide a disabled person with an auxiliary aid where reasonable if this will prevent a disabled person from being placed at a disadvantage. For example, this might mean providing an interpreter for candidate who has a hearing impediment.
What obligations do clients have to make reasonable adjustments for disabled work seekers?
A contract worker is someone who is employed by one party (A) but is provided by A to work for another party (B). B is referred to as a principal. So when an employment business supplies a temporary worker to a client the client is the principal and the temporary worker of the client is the contract worker.
Obligations owed by the principal (client) to the contract worker (the temporary worker):
The Equality Act prohibits a principal from discriminating against a contract worker:
- as to the terms on which the principal allows the worker to do the work;
- by not allowing the worker to do, or to continue to do, the work;
- in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service;
- by subjecting the worker to any other detriment.
Additionally a contract worker is protected from harassment or victimisation by the principal. The definitions are the same as those that apply to employees.
What obligations does a client have to make reasonable adjustments for disabled persons who are temporary workers?
A principal is subject to an obligation to make reasonable adjustments for contract workers who have a disability. If the contract worker is supplied by an employment business to a client (the principal) both the employment business and the client are required to co-operate to ensure that the appropriate reasonable adjustments are made.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.