What are protected characteristics?

During the recruitment process, employers cannot reject a candidate based on a protected characteristic. All candidates applying for your job must therefore be given the same opportunity to compete for a role. You may, however, choose not to recruit a candidate for fair reasons related to their skills profile, such as lack of experience. As stated in the Equality Act 2010, protected characteristics of candidates or employees include:

• age
• race/colour
• gender/sex
• sexual orientation
• religious belief
• marital status or civil partnership
• pregnancy and maternity
• physical and/or mental disability

It is important to familiarise yourself with all of the protected characteristics included in the Equality Act 2010 so that you can remain EEO compliant as a company. In addition, you cannot dismiss or fire an employee on grounds of any of the protected characteristics listed above.

Exceptions to EEO

There are some special cases where you can choose not to hire a candidate based on their protected characteristics. In the UK, this is known as a candidate’s ‘genuine occupational qualifications’. In these cases, you may deem it desirable for a candidate to have a protected characteristic, such as their race, gender or sexuality, in order to apply. According to the Equality Act, this must be crucial to the post in question, rather than merely an important factor. As an employer, you must prove that you have strong grounds to recruit based on genuine occupational qualifications.

For example, you may wish to employ a hard of hearing candidate whose primary language is British Sign Language (BSL) to provide counselling services to hard of hearing people who are fluent in BSL. In this case, a candidate having this protected characteristic is crucial to the post.

Affirmative action or positive action

Positive discrimination is prohibited in the UK by the Equality Act 2010. This is because you cannot prioritise a candidate on the basis of their protected characteristics, regardless of whether they are part of an historically excluded or marginalised group. However, you can pick candidates who are from under-represented groups as long as they are as qualified for the role as your other candidates. This is known as affirmative action or positive action. Affirmative action can help you balance your team by aiming to recruit more employees on the grounds of their protected characteristics. For example, choosing to hire more black women for a team that is otherwise made up of all white male staff. Therefore, in this kind of circumstance, you can take into consideration a candidate’s protected characteristics when making a recruitment decision if this contributes to addressing diversity issues within your team. It is good to consider whether a candidate is part of a marginalised group before making a recruitment decision. However, it is important to remember that you cannot hire a candidate who is less qualified over a more qualified candidate based on their protected characteristics.

How to create a skills-based hiring process

You can help avoid candidates making claims of discrimination against you if you hire employees based on their skill set rather than on personal characteristics. Skills-based recruitment involves looking at a candidate’s work history to see if it matches that of your role. This includes discussing soft skills with the candidate; soft skills may include leadership and conflict resolution skills. Some ways to create a skills-based or competency-based recruitment process include:

• creating job descriptions that clearly outline the skill set necessary in order to perform the role, rather than focusing on personal qualities;
• making sure that all interviewers are trained appropriately in conducting a discrimination-free interview process;
• reminding your interviewers not to ask candidates questions about their health data or records;
• focusing on discussing relevant skills during the interview process, rather than making small talk with the candidate;
• working alongside your HR team to find the best way to describe the skill set necessary for the role that you are recruiting for;
• integrating skills-based assessments into the hiring process, for example through competency tasks and questions.

Recruiting candidates based on their competency may also mean that they will require less training, as they will already be proficient in the skills necessary. A skills-based hiring process gives you access to a wider range of talent. You may also want to consider using a recruitment agency to help track down the right candidates for your openings. Other key reasons for using a skills-based hiring process include:

• finding candidates with good communication and leadership skills;
• balancing your workforce by finding candidates with skills or other qualities that may be currently missing from your teams;
• sourcing candidates with the right qualifications for the role, such as master’s degrees or accounting qualifications.

How to create a discrimination-free workplace

Even after you have recruited new candidates, you must continue to follow the Equality Act 2010. You can help to create a discrimination-free workplace with these suggestions:

Anti-discrimination training sessions

To make sure that your whole team is compliant with current UK law, consider holding anti-discrimination training sessions. For instance, create a slideshow outlining the main points of anti-discrimination law, with a quiz and a question-and-answer session at the end. That way, you can make sure that everyone remembers the law. It also gives them time and space to ask any questions if necessary.

Listening to employees and taking on board their concerns

Once your employees have had the correct anti-discrimination training, it is important to hold them accountable throughout their time working for you. Listen to employees who have any concerns about other team members regarding discrimination or bullying behaviour, and take appropriate action. It is advisable to take legal advice if you decide to escalate a complaint made by an employer. Consider recording all instances of discrimination and bullying. This also extends to customers and clients; you may want to keep a record of any incidents involving an employee discriminating against them.

State your anti-discrimination policy clearly in the workplace and on your website

Make sure that clients, customers and employees can easily access your anti-discrimination policy. That way, they can regularly familiarise themselves with how you work to end discrimination in your workplace.

What happens if I fail to comply with UK legislation on equal employment opportunities?

Employees who feel as if they are being discriminated against in your business for any reason may raise a grievance against you as their employer. They may also escalate the issue in an employment tribunal. Employees who leave because they believe that they have been discriminated against can claim constructive dismissal. Therefore, it is important to settle issues or disputes with employees as quickly as possible.

If an employee has concerns, consider holding a one-to-one meeting with them as a first step towards working out which actions are best to take. If a manager is discriminating against an employee, you may decide to give the manager a warning. Make sure that your solutions are effective by holding follow-up conversations with the relevant employees. Keep all information related to discrimination matters on file. This is in case you need to refer to it during an employment tribunal.

Termination of employment and protected characteristics

As an employer, you cannot terminate an employee’s employment with you based on any protected characteristics according to the Equality Act 2010. For example, you cannot end an employee’s contract with you because they are pregnant or need to take parental leave.

How to integrate EEO into your HR strategy

Equal employment opportunities need to be part of your HR strategy in order to ensure EEO compliance, and you should ideally assign to your HR team the role of communicating EEO policies to your entire business. These policies should be clear and easy for everyone to understand. HR can also help communicate your equal opportunities policies outside the business as well, such as to clients and customers. Therefore, it is worth assigning this role to a strong communicator who is experienced with social media. Further reading: 4 ways to ask cultural interview questions How to hire your first employee How to conduct a job interview