Discrimination in recruitment and selection of employees
The Equality Act does not restrict employers’ right to choose the candidate they consider the best for a particular job. The Act aims to prevent situations where a person is appointed unjustly on the basis of gender when another candidate would have been more qualified.
This also applies to situations where employees are selected from within the workplace for training programmes or new roles. Applicants must not be discriminated against on the grounds of pregnancy, childbirth, parenthood or family responsibilities.
Further, the employer must not act in a way that results in a person being in an unfavourable position in these situations due to gender identity or gender expression. A finding of discrimination does not require intentionality or negligence by the employer.
When there are both male and female applicants, the employer is to carry out a comparison of merits. The employer's own previously set selection criteria are of central importance in the comparison of merits. Attention is usually given to applicants’ qualifications, previous work experience, and any qualities, knowledge and skills that could prove useful in the job and that can therefore be considered as additional merits.
The employer may choose to specifically hire a man or a woman for the task without being guilty of discrimination if this is based on weighty and acceptable grounds related to the nature of the job or the task. For example, a theatre may want to hire a male actor, as this is required by the role, or the working relationship may be so personal, for example when caring for an elderly person in their home, that they specifically want to hire a man or a woman.
On the whole, an acceptable reason is required if, according to the general criteria set, the most qualified applicant is not chosen. An acceptable reason may for example be a difference in personal suitability between the candidate who was selected and the candidate who was not. It is up to the employer to prove that such a reason exists.
Do you suspect discrimination?
- If you suspect that you have been discriminated against you can receive instructions and guidance from the Ombudsman for Equality.
- In cases of discrimination at work:
If you are a member of a trade union you should get in touch with the union steward and find out your rights.
- Guidance from the Ombudsman for Equality is free. The trade union membership fee includes the right to legal advice.
- You can also contact a legal aid council, a lawyer's office or a lawyer. You will usually be charged for legal services. Check if you have the kind of legal expenses insurance which covers your legal expenses.
If you are of limited means you may be entitled to the services of a legal aid council for free or for a reduced fee.