Recruitment processes should be fair and only discriminate between individuals on the basis of their ability or potential for subsequent job performance, and not on the basis of their ‘Protected Characteristic’ (PC) as defined by the Equality Act 2010. However, there are instances when certain groups are disadvantaged in a recruitment process due to one of their PCs. Adverse impact occurs when one group is disadvantaged in a particular assessment on the basis of their PC.

Research has indicated small differences in performance on certain assessments between various groups of individuals. For instance, women tend to do better than men on verbal reasoning tests, and Chinese and French men seem to outperform everyone on Numerical reasoning tests. However, these differences are only evident at the top end of the distribution and no one group has ownership of the bottom part.

Thus if an employer applied a criterion of 30th percentile on a numerical test, it is unlikely that any adverse impact would be evident; a proportional number of each PC group would be likely to continue through to the next stage of the recruitment process. However, if the cut-off was placed using a higher criterion, for instance 90th percentile, then we would find that more of a particular group would not be meeting the new criterion when compared to their counterparts. This is why low cut-offs around the 30th percentile are recommended for new assessments and consistent monitoring is undertaken to assess for any adverse impact.

Adverse impact is not illegal if job relevance can be demonstrated. For example, the use of a numerical test for an accountancy job, may lead to more Chinese and French men succeeding through if a higher cut-off was used (not recommended by experts). However, if a numerical test was used for the selection of a lawyer, when the subsequent role does not require any reasoning with numbers, then any adverse impact would be deemed illegal. It can also be noted in the latter example that the use of a non-relevant assessment could also be deemed as illegal.


Direct and Indirect Discrimination

In the context of recruitment, direct discrimination takes place when there is a deliberate attempt to choose a particular person to fill a role based upon a ‘protected characteristic’ or PC. For example, attempting to fill a quota of female employees without reasonable grounds. Direct discrimination is almost always unlawful, particularly when you are unable to justify your approach.

Have a look at the following job advert and decide whether this is illegal or not.


Part-time up to 16 hours per week, must have good telephone manner and excellent communication skills.

Women need only apply! Contact us with your CV at the ‘Women’s Shelter Home’…”

In the above example, the advert is not illegal as the employer is able to justify why they require a female receptionist; the job is for a ‘Women’s Shelter Home’. In the same manner, a Chinese themed restaurant may be able to argue the need to recruit individuals who look Oriental in their appearance to ensure their brand is as realistic as can be. However, with no justification, this would of course be illegal.

Indirect discrimination takes place when there is adverse impact but no job relevance can be demonstrated. This type of discrimination is rare as more often than not, employers tend to use relevant assessments albeit with cut-offs that may lead to adverse impact. As aforementioned, adverse impact on its own is not illegal, if job relevance can be demonstrated.


Victimisation occurs when someone is treated less favourably or ‘badly’ because they have made a complaint under the Equality Act 2010, or they are supporting or suspected of supporting someone else in their complaint. For example, an employee is subsequently treated badly for making a complaint against his or her manager.

Harassment by a Third Party

Under previous legislation, employers have a responsibility to take reasonable action to stop any discrimination against their employees by third parties (e.g. customers) who are not employed by the company, on the basis of sex. However, under the Equality Act 2010, this type of discrimination has been extended to include additional PCs of age, disability, gender reassignment, race, religion or belief and sexual orientation. For example, if a customer decides to make sexist comments to an employee and the manager knowingly chooses not to do anything about this to prevent a repeat of this behaviour.

An employer may only be liable when this type of discrimination has taken place on at least two instances and they have not taken any action to prevent it from happening, although they have been aware of it.


Harassment defined as the “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. Under the Equality Act 2010, employees can now complain of harassment behaviour even if it is not directed at them. For example, an employee could claim harassment if they are teased about their sexuality, whilst another employee could complain because they find the work environment to have become more hostile as a result of this behaviour, although they are not being teased. An important point is that an employee can claim harassment even if they do not possess the PC that they are being harassed about; e.g. being teased and directed with homophobic comments and remarks when indeed you are not homosexual.

Harassment extends to all protected characteristics (PCs) excluding pregnancy and maternity, and marriage and civil partnership.

Discrimination by Perception

This is considered to be direct discrimination against an individual on the basis that others may perceive them to possess a particular PC. For example, discriminating against an employee on the basis that they may not ‘look the part’, due to a particular PC, in a particular role; i.e. someone looks too young to represent a client meeting. An important point to note is that this can still apply even if the individual does not possess the characteristic.

Legislation around Discrimination by Perception previously only applied to age, race, religion or belief and sexual orientation, however as a result of the Equality Act 2010, this has been extended to include disability, gender reassignment and sex.

Discrimination by Association

This is deemed as direct discrimination against an individual on the basis that they associate themselves with another individual who possesses a particular PC. For example, if an eligible employee is refused a promotion on the basis that their best friend is gay.

Legislation around ‘Discrimination by Perception’ previously only applied to race, religion or belief and sexual orientation, however as a result of the Equality Act 2010, this has been extended to cover age, disability, gender reassignment and sex.

Job Analysis and Legislation

In the context of legislation, the use of job analysis to identify the requirements of a job and subsequent assessments to use for selection is invaluable.

Job analysis helps to identify the competencies, technical knowledge/skill and personality traits required for a job, and the process is able to clarify the type of assessments to use; in doing this it focuses on the relevance of an assessment type to the job which in turn ensures that no employer is vulnerable to violating discriminatory legislation. Even if adverse impact occurs during their assessment process, the relevance of the assessment still stands ensuring that legislation is not violated.