Unlawful discrimination can take a number of different forms:
- You must not treat a job applicant worse than another job applicant because of a protected characteristic (this is called direct discrimination).
An employer does not interview a job applicant because of the applicant’s ethnic background.
An employer says in a job advert ‘this job is unsuitable for disabled people’.
- You must not do something which has (or would have) a worse impact on them and other people who share a particular protected characteristic than on people who do not have that characteristic. Unless you can show that what you have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.
A job involves travelling to lots of different places to see clients. An employer says that, to get the job, the successful applicant has to be able to drive. This may stop some disabled people applying if they cannot drive. But there may be other perfectly good ways of getting from one appointment to another, which disabled people who cannot themselves drive could use. So the employer needs to show that a requirement to be able to drive is objectively justified, or they may be discriminating unlawfully against people who cannot drive because of their disability.
You must not treat a disabled job applicant unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified. This only applies if you know or could reasonably have been expected to know that the applicant is a disabled person. This is called discrimination arising from disability.
An employer tells a visually impaired person who uses an assistance dog that they are unsuitable for a job because the employer is nervous of dogs and would not allow it in the office. Unless the employer can objectively justify what they have done, this is likely to be discrimination arising from disability. The refusal to consider the visually impaired person for the job is unfavourable treatment which is because of something connected to their disability (their use of an assistance dog). It may also be a failure to make a reasonable adjustment.
- You must not treat a person worse than another job applicant because they are associated with a person who has a protected characteristic.
An employer does not give someone the job, even though they are the best-qualified person, just because the applicant tells the employer they have a disabled partner. This is probably direct discrimination because of disability by association. Direct discrimination cannot be justified, whatever the employer’s motive.
- You must not treat a job applicant worse than another job applicant because you incorrectly think they have a protected characteristic (perception).
An employer does not give an applicant the job, even though they are the best-qualified person, because the employer incorrectly thinks the applicant is gay. This is still direct discrimination because of sexual orientation.
- You must not treat a job applicant badly or victimise them because they have complained about discrimination or helped someone else complain or have done anything to uphold their own or someone else’s equality law rights.
An employer does not shortlist a person for interview, even though they are well-qualified for the job, because last year the job applicant said they thought the employer had discriminated against them in not shortlisting them for another job.
- You must not harass a job applicant.
An employer makes a job applicant feel humiliated by telling jokes about their religion or belief during the interview. This may amount to harassment.
In addition, to make sure that a disabled person has the same access, as far as is reasonable, to everything that is involved in getting and doing a job as a non-disabled person, you must make reasonable adjustments.
If an applicant asks for information about the job and the application form (if there is one) in an alternative format which they require because they are a disabled person then you must provide this, so long as it is a reasonable adjustment – and it is likely to be.
If an applicant needs reasonable adjustments to participate in any interview or assessment process, then you must make them.
When you assess a disabled job applicant’s suitability for the job, you must take account of any reasonable adjustments which are needed to enable them to do the job.
If, after taking reasonable adjustments into account, the disabled applicant they would not be the best person for the job, you do not have to offer it to them.
But if they would be the best person with the reasonable adjustments in place, you must offer them the job. In any event, it would make sense for you to do this, as you want the best person for the job.
You can read more about making reasonable adjustments to remove barriers for disabled people.
We also highlight particular issues in each section of this guide that you may need to think about when you are recruiting disabled people.