When employers are making selection and recruitment decisions, they need to make sure that they are not falling foul of equality laws.

E2E’s strategic partner, Ellis Whittam, answer some of the questions frequently asked by employers.

Is it lawful for an employer to require a job applicant to be of a particular sex?

Only in very narrow circumstances. To do so, there must be a genuine ‘occupational requirement’. This means that it must be essential to the job, relate to the nature of the role and be a proportionate means of achieving a legitimate aim. In other words, you must show that you have thought about the effects of this requirement and considered it was the least discriminatory way to do things.

For example, in cases of a women’s refuge which only provides services to women, the employer may decide that all its employees should be women to help support the users of its services.

We would always recommend that you seek legal advice from your Ellis Whittam Employment Law Adviser because this is hard to justify.

Are job applicants obliged to disclose to their prospective employer that they are pregnant?

No. Women are under no legal obligation to reveal that they are pregnant. If they do disclose it, it should not be taken into consideration when deciding whether they are right for the role.

In interviews, you should refrain from asking questions about whether they are married, have children or plan to have children.

Can employers ask for someone’s date of birth in an interview?

You should only ask age-related questions to establish whether an applicant fulfils the minimum age to do the role. For example, if the job is working in a bar, workers will need to be over the age of 18 to sell alcohol.

Otherwise, you should avoid asking questions about someone’s date of birth in an interview. Questions of this nature, such as asking an applicant what year they graduated or when are they planning to retire, may also be construed as discriminatory on the basis of age.

You may decide to ask their date of birth on a separate form (i.e. not the application form) for monitoring purposes. This form should not be shown to any managers who will be involved in deciding who to hire.

Can employers ask a job applicant to fill in a medical questionnaire?

Generally, employers cannot ask a job applicant any questions about their health or disability until they have been offered a job. There are certain exceptions to this rule. An HR specialist will know all about this.

If you do decide to ask the employee to fill in a medical questionnaire after you have made them a job offer, you need to beware of your obligations under the GDPR. Find out more here.

Are there specific protections in place when the job applicant is disabled?

Employers need to think about their duty to make reasonable adjustments when there are applicants with a disability.

A good example is the case of Government Legal Service v Brookes. The Employment Appeal Tribunal concluded that a job applicant with Asperger’s syndrome suffered discrimination as a result of being required to undertake a situational judgment test as part of the first stage of its recruitment process.

The applicant’s request to answer the questions in a short narrative rather than the required multiple choice was rejected. The Employment Tribunal held that the requirement to sit and pass the test did place the applicant at a disadvantage compared with those applicants who did not have Asperger’s.

Although the Tribunal agreed with the employer that testing applicants’ ability to make effective decisions is a legitimate aim as it is an essential competency required for the role, it was deemed disproportionate because there were less discriminatory alternatives available. The Employment Appeal Tribunal agreed.

If you have any other questions about recruitment, contact the experts for bespoke guidance and support.


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