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Essential points 

  • To avoid discrimination in recruitment when advertising for posts and interviewing job candidates, organisations should not ask questions about a candidate’s age, or their health. Employers can ask about disabilities where necessary to make for reasonable adjustments or to take steps to accommodate a health condition or disability. 
  • Organisations cannot reject job candidates because they have a spent conviction or are a member of a trade union or if they are aware that a candidate has been a whistleblower, or made allegations of claims of discrimination, (even if this was against a previous employer or another entity). 
  • When selecting between two equally well-qualified candidates, employers can prefer a candidate from an under-represented group where this corrects an imbalance in its workforce but there must be clear evidence to support the underrepresentation. 
  • Direct discrimination can occur (in relation to recruitment) if discriminatory statements are made about a protected characteristic – both inside and outside an active recruitment process and where one or more protected characteristic is the basis for a decision to reject a candidate (unless there is a lawful reason (either an occupational qualification exception, or for age and disability, the decision can be objectively justified). For example, it is unlawful to make a comment indicating that given a choice an employer would not hire someone from an particular ethnic group. This applies even if there is no identifiable victim or the comment is not directed to a specific individual.
  • Employers do not have to provide a reference for a former employee (unless there’s a written agreement to do so or where the role relates to a regulated sector such as financial services) and provided the refusal is not based on unlawful grounds, for example, victimisation, due to whistleblowing, blacklisting or union membership. Any references must be fair and accurate. 
  • Providing a misleading or inaccurate reference could lead to a claim for damages for misrepresentation, or discrimination (from both the subject and recipient of the reference). 

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Disclaimer 

​Please note: While every care has been taken in compiling this content, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice. 

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