It is also illegal to not hire an applicant on discriminatory grounds, such as their marital status, family commitments and child care. In Elliot v Buttler (Industrial Tribunal) a candidate’s domestic responsibilities we unlawfully assumed to be likely to conflict with the job requirements.
Whilst the laws are in place to help possible candidates as it is a big step forward in preventing discrimination, it also helps in other ways. It is possible to be positively discriminated against, for example many large firms have targets for the number of employees who are female or of a certain ethnic background. There are occasions when these candidates are selected in preference to other applicants to make up numbers; in effect the other candidates are discriminated against, but in a way that is deemed more acceptable. When applicants are chosen for a role, it is not uncommon for unsuccessful candidates to claim discrimination when there hasn’t been any. This is a legal nightmare for firms, they must now justify why the chose the candidates they did, but also why they didn’t chose the others. “The Equal Opportunities Commission (EOC) and the Commission for Racial Equality recommend that organisations adopt a procedure for recording reason why applicants have been rejected at each stage of the selection process.” Understanding Business Studies – Needham & Drannsfield 1997.
It is no longer enough for an interviewer to say that they don’t think their personality would fit well in the team, even if this is the case. All recruitment decisions must be made entirely on the applicant’s merits or a firm runs the risk of a court case.
In the case of applicants with a disability it is illegal to turn down an applicant because an organisation hasn’t got the infrastructure in place to accommodate the applicant’s needs and it is seen as reasonable to implement change. For example, if a person is wheel chair bound and the infrastructure needs to be put in place to accommodate the new member of staff such as wheel chairs ramps, a disabled W.C., lifts etc. It would be seen as unreasonable to ask a small firm to put that kind of infrastructure in place as it would be an expensive task in relation to the turnover/profits. There is also a clause which exempts companies with 20 or fewer staff from the obligation of improving accessibility although they are still actively encouraged. Adversely, larger companies are obliged to as it is generally accepted that the costs would be absorbed far more easily. In terms of HRM and finding the right person for the job, it may be in the best interests of the organisation to hire staff at an initial cost if their skills and experience can reap rewards for the organisation in the long run. The home improvement chain B&Q have been very proactive in addressing ageism in particular, but also discrimination in all its forms. Infact they won the Human Resource Excellent Award 2003 and are well known for their desire to employ staff from across the board. This is shown in this quote from their recruitment website ; “We recruit people from all walks of life, not just retail workers. From college students and time-served plumbers, to returner mums and retired teachers. It really doesn’t matter where you come from. What’s more important is that you have the right ‘attitude’.”
Discrimination is also a concern on a day to day basis, whilst a company may have an equal opportunities policy like the one McDonald’s have in place; “McDonald's is an equal opportunity employer, ensuring that employees and job applicants are selected, trained, promoted and treated on the basis of their relevant skills, talents and performance and without reference to race, colour, nationality, ethnic origin, gender, sexual orientation, marital status, age or disability. The company aims to ensure that no job applicant or existing employee is disadvantaged by conditions, requirements and policies that cannot be shown to be just and fair.” www.mcdonalds.com. Such a policy only recognises the employer’s obligations with recruitment and training, not the day to day responsibility that an employer has to ensure a safe and hassle free environment. The relevant discrimination laws also cover issues such as bullying by other employees as well as promotion and training opportunities. Within the jurisdiction of vicarious liability; “employers are responsible for the acts of their employees who discriminate unless they show that they took reasonably practical steps to stop the discrimination.” Employment Law, Jefferson, 2000. With bullying in the work place, it can be very difficult to monitor and manage as many victims won’t come forward and some people’s ignorance goes more than skin deep. Some employers are more aware of this than others and are taking steps forward in improving the working environment, one such organisation is J Sainsburys who have several pledges in place. “Through these pledges Sainsbury's aim that all staff can work without fear of discrimination, harassment and bullying and that all colleagues, job applicants, customers and suppliers should be treated fairly, regardless of:
~ race, colour, nationality, ethnic origins or community background
~ gender, gender realignment, sexual orientation, marital or family status
~ religious or political beliefs and affiliations
~ disability
~ real or suspected infection with HIV/Aids
~ membership or non-membership of a trade union
~ differing working patterns such as part time
~ age”
Whilst J Sainsburys have this pledge and an equal opportunities policy, it does not clear them of vicarious liability of discrimination between employees. In order for an organisation to be clear of vicarious liability they must also take steps to prevent discriminatory acts occurring, such as giving out verbal warnings to perpetrators.
When dismissing staff for whatever reason, companies must be extremely careful to ensure their reasons are not discriminatory. They must be able to show that there was a good reason for your dismissal and that he or she acted reasonably. A dismissal is usually regarded as fair if it is to do with; capability or qualifications for the job, misconduct, redundancy, legal requirements of the job or some other substantial reason. Some dismissals automatically qualify as being unfair or discriminatory; such reasons may include sacking a woman because she is pregnant, as shown in Hayes v Malleable WMC (1995).
If an employee or ex employee accuses an organisation of discrimination then it will either go to a tribunal or a court of law. If discrimination can be proved then the organisation can be liable for a financial penalty and compensation, forced to reemploy a person who has been unfairly dismissed and ordered to remove the discrimination, in the case of bullying, the perpetrators would be reprimanded or dismissed.
Human Resource Management is about finding the right staff, with the right skills at the right time. It is also about taking care of the employees and ensuring that their best interests are at the forefront of the organisations objectives. Under this umbrella falls the legal right of employees or prospective employees to an equal chance of work and equality in the work place. Aside from the obvious areas of discrimination such as age, race and gender, the discrimination issue is becoming even more of a mine field. Sex discrimination has expanded from being a purely gender based issue to encapsulate sexual orientation, i.e. gay, lesbian and bisexual. There have also been many cases of discrimination against transsexuals and transgender employees. A new and increasing area of discrimination is elitism, where people have been employed or given preference in the work place because of who they are, who they know, their background and especially where they completed their education. This legal obligation can be a great burden on many businesses, especially with today’s growing trend of lawsuits. In many cases the lawsuits are genuine and the claimants have been unlawfully discriminated against. But there are many cases where the claim has been false. This means that organisations cannot leave any gaps in its treatment of any potential, current or ex employees which could lead to prosecution, intentional or not. This is a strain on the resources of any organisation to be an equal opportunities employer as well as protect them from prosecution.
Bibliography
~ Anon, TUC’s guidelines on Equal Opportunities,
Available from
~ Anon, B&Q employment policy,
Available from
~ Anon, McDonalds Peoples Promise,
Available from
~ Anon, J Sainsburys Pledges,
Available from
~Anon, Race Relations Act, Commission for racial equality
Available from
~ Michael Jefferson, Principles of Employment Law, 4th Ed, 2000, Cavandish Publishing Ltd
~Needham & Dransfield, Understanding Business Studies, 1997, Stanley Thomas Ltd.
~ John Bowers, Bowers on Employment Law, 6th Ed, 2002, Oxford
