Women's Rights at Work available in Hardcover
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- Pluto Press
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About the Author
John R. Gee is the Information Officer at the Council for the Advancement of Arab-British Understanding and the former editor of Palestine Solidarity.
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Finding a Job
Finding a job is not the easiest thing in the world – a quick look at the unemployment figures in the UK will testify to that. Unfortunately for women, the search may not be entirely straightforward – there are plenty of employers who either do not want to employ women or who will only do so if they can hire them on a lower wage than men. For disabled and ethnic minority women, the problem is even more acute.
There are, of course, a few individuals (usually men) who never have to look for a job – people with so many skills whom employers are prepared to headhunt from other firms, usually with the lure of extra cash. Lucky them, you might think. But the practice raises a more important consideration than just straightforward envy. And that is whether it is legal for employers not to advertise.
Is it Legal Not to Advertise a Job?
Unfortunately, there is no obligation on employers to advertise a vacancy. But even though they cannot be made to advertise, it may be discriminatory if they do not. (See Chapter 3 for an explanation of direct and indirect discrimination.)
For instance, in a recent case brought by a solicitor against the Lord Chancellor (Coker and Osamor v. Lord Chancellor and Lord Chancellor's Department), the employment tribunal said that the Lord Chancellor had indirectly discriminated against Ms Coker. This was because he picked someone from among his own circle of (male) friends without advertising the post.
Likewise the sex discrimination case brought by a barrister, Josephine Hayes, against the Attorney General (Hayes v. Attorney General) for the way in which he appointed a male government lawyer. Because the post was not advertised – the successful candidate was chosen from a secret list of approved barristers – Ms Hayes claimed she was overlooked in favour of male colleagues. Although the claim was settled out of court, the Attorney General accepted that informal consultation may lead to indirect discrimination.
Does the Advertisement Discriminate against you under the SDA or RRA?
Once employers decide to advertise, they have to make sure that the advert does not contravene the Sex Discrimination Act or the Race Relations Act. Basically, the law says that the advert should not refer to the gender of the person the employer is looking for, nor their ethnic origin. So, for instance, adverts for 'salesgirls' or 'firemen' are out; so are adverts which suggest that people with certain racial backgrounds will be excluded. There are a few exceptions to this rule and these are considered in the next section of this chapter.
So if you see an advert which seems to discriminate against you in this way, contact the Equal Opportunities Commission or the Commission for Racial Equality, the only bodies entitled to bring proceedings under this section (although check first that it does not fall into any of the exceptions explained below).
Advertisements for staff described as self-employed are also covered by the advertising provisions of the Sex Discrimination Act. The same principle would apply equally to the Race Relations Act.
What about the DDA?
The Disability Discrimination Act – which only applies to employers with 15 or more employees – operates slightly differently. It allows an employer to advertise openly for disabled candidates, with the result that the able-bodied cannot claim that an advert is discriminatory against them. A disabled person can, however, complain to an employment tribunal if an advert infers a bias against the disabled, as long as he or she had applied for the job in question.
Does the Law Sometimes Allow Discriminatory Advertisements under the SDA or RRA?
This section does not apply to the Disability Discrimination Act.
An employer is allowed to discriminate where a person's sex or race is a genuine occupational qualification (GOQ) for the job, in other words, where the employer can show that the job has to be done by someone of a particular sex or race. If that is the case, the law allows the employer to discriminate in recruitment, opportunities for promotion or transfer to, or training for, that job. It follows that if the discrimination is lawful under the Sex Discrimination Act or Race Relations Act, so is the advertisement.
A GOQ may only be claimed in the following circumstances under the Sex Discrimination Act:
Physiology or authenticity, for example, a job as a model or an actor
Decency or privacy, for example, a job which is likely to involve physical contact or where people may be undressing
Living in: the jobholder is living, or working, in a private home where there is a high degree of physical contact
Single sex accommodation: the jobholder has to live in and there is only sleeping or sanitary provision for one sex
Single sex establishment: the job has to be done by one particular sex because it is based in an institution providing special care for one sex only
Personal services: for example, job holders such as rape counsellors, birth control advisers or welfare officers
Outside the UK: the job will involve duties in a country outside the UK, for instance, where the law prevents women from doing certain jobs, such as driving
Married couples: the job is one of two to be held by a married couple
There are four grounds on which race is a GOQ under the Race Relations Act:
Dramatic performance: it is worth noting that this exception only applies to skin colour – it is quite acceptable under the Act for, say, an English actor to play the part of an Irish person (however annoying it might be to the Irish)
Authenticity, the job involves being an artist's or photographic model
Restaurants: the job involves working in a place where food and drink are served to the public, such as a waiter in a Chinese or Indian restaurant
Personal services: the job holder provides people of a particular racial group with personal welfare services
Is it Unlawful for an Employer to Give Instructions to Discriminate?
It is unlawful under both the Sex Discrimination Act and the Race Relations Act for an employer to instruct an employment agency or job centre to carry out an unlawful, discriminatory act. For instance, it is unlawful for an employer to tell a job centre not to send 'any coloureds or foreigners' for interview. Likewise, it is unlawful for the job centre or employment agency to publish discriminatory advertisements. The same principle would apply to the Disability Discrimination Act.
The employer's intention is irrelevant. An employer would still be in breach of the legislation if, for instance, he or she told a job centre that there was no point in sending women for interview because the job involved lifting.
All three Acts – the Sex Discrimination Act, the Race Relations Act and the Disability Discrimination Act – contain specific measures to try to prohibit discrimination by employers during the recruitment process. There are basically three ways in which it is unlawful for an employer to discriminate at this stage:
In the arrangements made for deciding who should be offered a job (such as the instructions given to a personnel officer or to an employment agency)
In any terms of employment (for instance, in relation to pay or holidays)
By refusing, or deliberately omitting, to offer someone a job (by rejecting an application or by deliberately avoiding consideration of an application)
Have you Been Discriminated against in the Offer of a Job?
There is no statutory definition of what constitutes an 'arrangement' in the recruitment process. Although advertising is not included, just about everything else in the process can be. In other words, the method/s used for recruitment, the job description, the wording on the application form, the way the interview is conducted, the criteria used for selection and even a medical examination (see later in the chapter).
In a recent race discrimination case (London Borough of Croydon v.
Kuttappan), the Employment Appeal Tribunal said that the concept of 'arrangements' included the following:
A refusal to consider an application at all
The exclusion of applicants in a particular area
Telling potential applicants not to apply for the job
Telling an applicant that the job is filled when it is not
A refusal to interview a person or to provide an unbiased interviewing panel
This means that any discrimination at any stage of the recruitment process can be challenged long before any offer or refusal of employment has been made. At any of these stages the victim of discrimination can, therefore, bring a claim before an employment tribunal, but it stands to reason that if it can be shown that the applicant was very unlikely to have got the job, then the compensation will be limited. As with advertisements, recruitment arrangements may still be discriminatory even if there was no intention to discriminate.
What Rules Apply to Job Descriptions/Specifications?
There is no legal requirement on an employer to provide a written job description or specification. But if he or she bothers to do so, then it should not fall foul of any of the discrimination legislation; that means it should be written in non-discriminatory terms and should exclude requirements which are not central to the job.
Women should study every job description carefully for any bias in the way the job is set out. For instance, a job description for a driver which emphasises heavy lifting may be a way for employers to filter out women applicants at an early stage. It may be that there is little or no lifting, or that any which has to be done could be done with or by someone else other than the driver.
The Code of Practice for the Disability Discrimination Act says that including unnecessary or marginal requirements, as well as blanket exclusions, in a job description or specification can lead to discrimination. For instance, if an employer refused to employ anyone with epilepsy as a driver – although some have a licence and can get insurance – he or she will probably be guilty of discrimination.
The Equal Opportunities Commission in its Code of Practice recommends the following:
That employers look at the qualifications and requirements being applied to a job if they seem to inhibit applications from one particular sex (or married people). They should only be retained if justified for doing the job
That age limits should be scrapped, unless necessary for the job. Although age discrimination is not unlawful in this country, an unjustifiable age limit could constitute unlawful indirect discrimination, for example, against women who have taken time out of employment for childcare purposes
What about Application Forms in Terms of Sex and Race Discrimination?
Application forms should not ask irrelevant questions about a person's sex or race. For instance, employers should not ask about the marital status of an applicant, unless they can show the relevance of the questions to the job. If the questions are relevant for whatever reason, they must be applied equally to all candidates, irrespective of gender.
In its Code of Practice, the Commission for Racial Equality recommends that employers should not demand a higher level of educational qualification than is needed. In particular, it says that employers should not disqualify applicants because they cannot complete an application form in English themselves, unless that would constitute a valid test of the standard of English required for the job.
For instance, in a case brought against British Leyland (Isa and Rashid v. BL Cars Ltd), two Pakistani applicants were refused employment because they could not complete their application forms themselves. BL subsequently admitted that the requirement to complete complex forms was unlikely to be necessary for the labouring jobs they were applying for.
What about Application Forms in Terms of Disability Discrimination?
Under the Disability Discrimination Act, the employer can do the following:
Include questions on the application form asking whether the applicant is disabled
Ask whether the applicant may need special arrangements to be made in the event that the disabled candidate is asked for interview (see later in this chapter under reasonable adjustments)
In addition under the Disability Discrimination Act, it may also be reasonable:
To expect an employer to provide information about jobs in alternative formats, such as Braille or on computer disc, if there is time to do so and it could easily be done
To expect an employer to make a reasonable adjustment to cope with an application form submitted in a different medium – for instance, an application on tape or made over the telephone
What Selection Criteria Should Employers Use?
The whole issue of selection criteria is fraught with problems, mainly because many employers are not aware that by failing to adopt objective and transparent procedures they may be discriminating unconsciously. For instance, employers who do not decide appropriate selection criteria in advance for shortlisting purposes are likely to rely on their own value judgements when sifting application forms, thereby potentially denying suitable candidates the chance of an interview.
In its Code of Practice, the Commission for Racial Equality recommends that:
Employers do not demand a standard of English higher than that needed to do the job
That employers do not impose a requirement for UK qualifications. It says that overseas degrees, diplomas and other qualifications which are comparable with UK qualifications should be acceptable as equivalents and not simply assumed to be inferior
Employers examine their selection criteria and tests to make sure that they relate to the requirements of the job. For instance, it says that selection tests that contain irrelevant questions or exercises on issues likely to be unfamiliar to racial minority candidates should not be used. This might include general knowledge questions on subjects familiar only to indigenous applicants
In some instances, it is more obvious than others that an employer is operating a discriminatory policy. In one case (Hurley v. Mustoe), the employer had a policy of not employing women with children. Not surprisingly, the Employment Appeal Tribunal found that this was discriminatory against women.
Is there Evidence of Discrimination in the Selection Criteria?
For the applicant herself, the problems in proving discrimination at this stage can be significant, but not insurmountable. What you need is evidence. If you decide to bring a claim, it is important to amass as much supporting material as possible:
Ask the employer for the selection criteria used for short-listing and the results for each candidate. A tribunal is unlikely to be impressed by an employer who is unable to provide any
Ask the employer for the scoring results of each candidate at the interview (these can be given anonymously if necessary) and details of how those results were arrived at. You can do this in a questionnaire (see Chapter 7 for details).
How do you Get the Evidence?
If the employer refuses to produce the necessary documentation and you have to make an application to the tribunal to make the employer cough up (a process known as 'discovery'), the tribunal is likely to grant your request as long as the documents you are asking for are relevant to proving your claim and would not involve the employer in too much work in getting them for you. However, in order to start this process, you need to have already lodged a claim with the tribunal. See Chapter 7 for more details.
For instance, in the Josephine Hayes case against the Attorney General (see above), the tribunal said that even the 'secret soundings' between a number of very senior law officers were 'discoverable'. This is very significant because it means that if you know that there have been secret consultations as part of the selection process you can ask the tribunal to order disclosure of them.
What about Aptitude Tests?
Aptitude tests have the same potential for discrimination as any other tests, although used correctly they can reduce bias in the selection process. The Disability Discrimination Act Code of Practice warns that although employers are not prevented from carrying out aptitude tests under the Act, routine testing of all candidates may discriminate against some individuals. In that case, employers should revise the tests to take account of specific disabled candidates. For instance, in the case of an employer who uses numeracy tests in every selection, irrespective of the job, if the specific job involves little or no work with numbers, the employer should make a 'reasonable adjustment' (see later in this chapter) for a candidate with learning difficulties who fails the test, by waiving that particular requirement.
Excerpted from "Women's Rights at Work"
Copyright © 2001 Alison Clarke.
Excerpted by permission of Pluto Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
List of Abbreviations, x,
1 Finding a Job, 5,
2 Getting Started, 26,
3 Equality in the Workplace, 39,
4 Conduct and Rights at Work, 92,
5 Health and Safety at Work, 136,
6 Dismissal, 169,
7 Post-employment Problems, 196,