Legal Article - Employment Law

Recruiting Employees in the Motor Retail Industry

The recruitment and selection process has many facets if the employer is to take on the best candidate and keep within the law. The main legal requirements for the motor trade include the necessity not to discriminate and to check that employees are eligible to work in the UK.

A refusal to employ a woman who is pregnant is sex discrimination. Single people, however, are not protected from discrimination as “marital status” protects only people who are married from being treated less favourably than an unmarried person of the same sex.

The employer’s freedom to seek, accept or reject applicants for employment is restricted by law. They cannot refuse a person employment simply because of their:

• Sex, marital and partnership status, maternity or pregnancy.
 
• Colour, race, ethnicity, national origin or nationality.

• Disability.

• Religion, beliefs, politics, sexual orientation, gender reassignment.

• Age

• Membership or non-membership of a trade union.

An employer is prevented, by law, from imposing a requirement that an employee must take steps to become or cease to be a member of a trade union. Employers are also prevented from making payments should an employee not join a trade union.

Direct and Indirect Discrimination

Direct and Indirect Discrimination

In this category, applicants and employees are protected against both direct and indirect discrimination.

The former occurs when a person of one sex, colour etc. is treated less favourably for that reason than a person of the opposite sex, or of a different colour etc. would be treated in the same, or not materially different, circumstances.

Direct marital status discrimination occurs, for example, when a married person is treated less favourably on grounds of marital status than an unmarried person of the same sex would be treated.

Indirect discrimination occurs when an unjustifiable requirement or condition, which is applied to both men and women in the case of sex discrimination, or to all racial groups, results in one sex or racial group being disproportionately disadvantaged in comparison with the other sex or another racial group.

The courts have said that the test for whether a requirement or condition is justifiable requires an objective justification based on evidence.

In other words, the employer must show that the requirement or condition corresponds to a real need on the part of the organisation and is both appropriate and necessary.

An objective balance must be made between the discriminatory effort of the condition and the reasonable needs of the organisation that applies the condition.

An example of indirect discrimination relates to part time employee rights. Sex discrimination occurs when part - time employees are excluded from jobs or benefits from jobs or benefits, as a substantial majority of part - time employees are women.

Discrimination against male part - time workers, or against men who wish to work part-time, is usually direct discrimination.
An employer can discriminate in favour of one sex, or one racial group etc.

Being of a particular sex is a Genuine Occupational Qualification for a job where, and only where, the following applies:

• Because of physiology (excluding stamina and physical strength) or authenticity, the essential nature of the job would be changed if performed by the other sex

• In order to preserve decency or privacy, members of one sex might reasonably object to the persons of the other sex because of physical contact or state of dress

• In “living-in jobs, accommodation is provided for only one sex and it is unreasonable to expect the employer to provide alternative accommodation for the other sex

• The job holder provides personal services (e.g. promoting welfare or education) which can be most effectively provided by one sex

• There are laws restricting the employment of one sex

• There are duties abroad, in a country where laws or customs, would render one sex ineffective Marital Status is a Genuine Occupational Qualification for a job where, and only where, the job is one of two held by a married couple.

Race is a Genuine Occupational Qualification for a job where and only where, the following apply:

• In dramatic performances, modelling or for reasons of ambience in a club or restaurant a person of a particular racial group is required for reasons of authenticity

• The job holder provides personal services promoting the welfare of a particular racial group which could be most effectively provided by a member of that racial group

Note that if being of a particular sex, marital status or race is a Genuine Occupational Qualification for any part of a job, it is permissible to discriminate on any of these grounds in the filling of a job as a whole.

Disability Discrimination and the Equality Act 2010

Disability Discrimination and the Equality Act 2010

Disabled people are protected in a similar way to that provided by the sex and race discrimination legislation. Again there is direct and indirect discrimination. Direct cases of discrimination can never be justified.
A disabled person is one who has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities:
 
• An impairment must last, or can reasonably be expected to last, at least 12 months but there are special provisions for recurring or fluctuating conditions.
 
• The impairment includes the affect on mobility, manual dexterity, physical coordination, ability to lift/carry/move everyday objects, speech/hearing/or eyesight, memory or ability to learn or understand, eating, washing or walking.
 
• Covers progressive conditions (e.g. cancer, multiple sclerosis) that will affect, in the future, the person’s ability to carry out normal day-to-day activities. Protection begins from the point of diagnosis.
 
Employers have a duty to make reasonable adjustments to working conditions or physical features of the workplace where otherwise a disabled person would be at a substantial disadvantage and the employer doesn’t know or couldn’t be reasonably expected to know the person is disabled.

Migrant Workers and the Immigration, Asylum and Nationality Act 2006

Migrant Workers and the Immigration, Asylum and Nationality Act 2006

Civil Penalty and the Defence
An employer is liable to a civil penalty (of up to £10000) if a person, 16 or over, is employed who are legally not permitted to work in the UK as they are in breach of their conditions to reside in the country. 

The defence, referred to as the excuse, is only relevant if the employer has carried out the required checks and has repeated them every 12months for particular time restricted permissions.

Criminal Offence
It is an offence to knowingly employ a person aged 16 or over without permission

EEA Nationals
An EEA National should be asked for confirmation of nationality and production of a required document as listed by the UK border agency. Nationals of Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia may need to be registered or authorised to work.

Race Discrimination
Due to the population in the UK being ethnically diverse, it should not be assumed that someone from an ethnic minority is an immigrant, or someone from abroad is not entitled to work within the UK.

Essentially the main way to ensure discrimination does not take place is to treat all applicants in the same way. It is courteous in seeking particular documents and can prevent a hefty penalty.
The requirements for Immigration control can vary from time to time. The UK Border Agency outlines the documents required for non-UK nationals to be able to undertake employment within this country. The list of necessary documents includes;

• A valid passport or national identity card
• A residence permit
• A permanent residence card
• A form of a travel document which shows the holder to be exempt from immigration control
• An Immigration status document
• A birth or adoption certificate
• A letter issued by the Home Office

For more information on the documents required to employ a non-UK national please visit the Home Office UK Border Agency  website. 

The UK Border Agency also provides a list of documents which can provide a defence for those employing people who are not of UK origin which can last for up to 12 months and are also known as “providing an excuse”. These documents include;

• A valid passport or travel document
• Biometric Immigration document
• Work permit
• Certificate of application issued by the Home Office
• Residence card or application registration card
• Immigration status document

For further guidance on these documents, please see the Home Office UK Border Agency Prevention of Illegal Working document.

Employee Recruitment Best Practices and Applications

Employee Recruitment Best Practices and Applications

The necessary legal restrictions apply not only to whom the employer selects for the job but also in the arrangements made for seeking potential employees. This could cover such actions as:

• The method of recruitment whether by employment advertisements, through employment agencies, job centres, career offices or simply by word of mouth

• The content of any recruitment methods (i.e. no words or actions must be used which indicates, or might be reasonably understood as indicating, an intention to discriminate for any of the above reasons)

• An attempt to put pressure on others to omit to refer for employment any of the above categories of people.

Any employer in deciding who to recruit should ensure that:

• Any qualifications or requirements applied to a job, which effectively inhibit applications from one sex, or from married people, or from different races etc., should be retained only if they are justifiable in terms of the job to be done.

For example, hours requirements should be reviewed to ensure that they do not give rise to unlawful sex discrimination, even if it is done indirectly, by excluding part-timers.

Requests for part-time working should only be refused if the employer can demonstrate objectively that part-time working is not practicable

• Any age limits should be retained only if they are necessary for the job as an unjustifiable age limit for employment could constitute unlawful indirect sex discrimination (e.g. against women who have taken time out of employment for child rearing.

When advertising for people to fill a particular post the following should be areas for consideration:

• Employment advertising should be carried out in such a way as to encourage applications from suitable candidates of both sexes, all races etc.
All advertising material and accompanying literature relating to employment should be reviewed to ensure that it avoids presenting men and women or those from particular racial groups etc in stereotypes roles.

Such stereotyping tends to maintain the issue of sex and race segregation in jobs and can also cause people of the opposite sex or a different racial group to believe that they would be unsuccessful in applying for particular jobs.

• All statements in any employment advertisement which might suggest that membership or non-membership of a union, or deductions in lieu of membership or non-membership, are part of the conditions of access to employment, must be removed.

• Recruitment solely or primarily by word of mouth may unnecessarily restrict the choice of applicants available.

This method should be avoided in a workforce predominantly of either one sex, or race, union members or non-members of a union, if in practice it prevents members of the opposite sex, different racial groups etc, or trade union members from applying.

• Requirements specifying length of residence or experience in the U.K. or laying down particular qualifications should be avoided.

• When notifying vacancies to the Careers Service or to an Employment Agency it should be made clear that these are open to any sex, race, etc or trade union member or non-member. This is especially important when a job has traditionally been done exclusively or mainly by one of these groups.

There will be very few instances in the retail motor industry in which a job will qualify for a Genuine Occupational Qualification on the grounds of sex, race etc.

The Sex Discrimination Act expressly states that the need of the job for strength and stamina does not justify restricting it to men. In some instances the Genuine Occupational Qualification will apply to some of the duties only.

This will not be valid, however, where members of the opposite sex or race etc are already employed in sufficient numbers to meet the employer’s likely requirements without undue inconvenience.

To ensure that they are applying an Equal Opportunity Policy in recruitment the employer should wherever practical record the number of women and men, married and single, different races etc, union and non-union members applying for jobs. The type of vacancy applied for is also relevant.

Where there appear to be discrepancies, employers should:

• Check that recruitment programmes are equally directed at all the above groups, particularly when using Job Centres, Employment Agencies or Educational Institutions

• Check that employment advertisements reach all necessary groups by checking the response rate of the different groups to the advertisement

• Check the text of employment advertisements to ensure that they do not exclude any group of suitable applicants

• Check that any drawings, real life examples or portraits of actual or potential employees do not give the impression that one group rather than another is preferred by the employer and more likely to succeed in the job. For example, portraying one sex only because they are the only sex employed, is not acceptable.

Where vacancies are not advertised the employer should:

• Check that the recruitment procedure does not discriminate either directly or indirectly by placing unjustified restrictions on the type of person to be recruited, for example only male school leavers or single people are coming forward

• Check how the job applicants find out about the vacancies in the company

• Check that job descriptions and person specifications relate to the vacancy rather than the sex, race etc of the jobholder and contain no discriminatory intent. 

This may not be obvious because they have been accepted over the years and never questioned. In particular, age limits, mobility requirements and length or type of experience needed should be queried and removed if they unjustifiably prevent or discourage women, or men, or married people, or particular nationalities, for example, from applying or being considered. 

 In recruiting foreign nationals the employer must ensure there is a valid permit, but must not reject applicants for not having a work permit when they do not need one, nor to demand proof or work entitlement from some job applicants only, otherwise he/she may be guilty of race discrimination.

The employer should ensure that all employees involved in the recruitment process are trained, or have knowledge of, employment law.

Published: 24 Mar 2011

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