Access to Employment

Key points

• Under the common law, an employer cannot be compelled either to employ a particular job applicant or to reinstate or re-engage someone who has been dismissed. As Lord Davey remarked in Allen v Flood [1898] AC 1: 'An employer may refuse to employ [a workman] for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but the workman has no right of action against him.' And again: 'A man has no right to be employed by any particular employer, and has no right to any particular employment if it depends on the will of another.'

• Although an employer retains his (or her) common law right to pick and choose the people he employs, there may be a price to pay for exercising that right. In short, an employer can be ordered to pay compensation to a job applicant if a tribunal or court is satisfied that the employer acted unlawfully in refusing (or deliberately omitting) to employ the person concerned on grounds of:

  1. sex, marital status, pregnancy or gender reassignment;

  2. colour, race, nationality, or national or ethnic origins;

  3. disability;

  4. trade union membership or non-membership;

  5. religion or political opinion (Northern Ireland only); or

  6. a 'spent' conviction.

  Recent developments: In December 2001, the Government published a consultation document (entitled Towards Equality and Diversity) outlining its proposals for implementing EU Directives 2000/43/EC and 2000/78/EC, the first of which prohibitions discrimination on grounds of race and ethnic origin; and the second, discrimination on grounds of sexual orientation, religion or belief, disability, or age. The consultation period ended on 29 March 2002. Legislation on sexual orientation and religion (including technical amendments to the Race Relations Act 1976) will be implemented in the second half of 2003. Legislation ending the exemption for small employers in the Disability Discrimination Act 1995 (as well as other amendments to that Act) will be brought into force in October 2004. However, legislation prohibiting discrimination on grounds of age is unlikely to be introduced before December 2006. Copies of the Consultation Document may be accessed and downloaded from website www.dti.gov.uk.

Sex discrimination

• Discrimination on grounds of sex, marital status or 'gender reassignment' (see next paragraph) is prohibited by the Sex Discrimination Act 1975. An employer's refusal or deliberate failure to offer employment on such grounds will very likely prompt a complaint to an employment tribunal. If such a complaint is upheld, the employer will be ordered to pay compensation to the complainant of an unspecified amount that includes damages for loss of prospective earnings and injury to feelings (plus interest on the sum awarded).

• Discrimination against transsexuals (more precisely, against persons who intend to undergo, are undergoing or have undergone gender reassignment) was outlawed on 1 May 1999 by the Sex Discrimination (Gender Reassignment) Regulations 1999.

  Note

  Following the decision of the European Court of Justice in Marshall v Southampton and South-West Hampshire Area Health Authority (No. 2) (Case No. C271/91) and the coming into force on 22 November 1993 of the Sex Discrimination & Equal Pay (Remedies) Regulations 1993 employers should by now be aware that there is no longer a ceiling or upper limit on the amount of compensation that may be awarded to a job applicant unlawfully denied access to employment on grounds of sex, marital status or (now) gender reassignment.

• An employer may be able to justify his refusal to employ a particular job applicant on the grounds that being a woman or a man (or being married) is a genuine occupational qualification for the job in question (ibid. section 7). The genuine occupational qualification defence is also permissible in certain circumstances involving gender reassignees. For further particulars, please turn to the section titled Sex discrimination elsewhere in this handbook.

• If an employment tribunal (at the suit of the Equal Opportunities Commission [EOC]) finds that an employer had yielded to third party pressure to discriminate against a job applicant on grounds of sex, marital status or gender reassignment, and that the third party concerned is likely to do so again, the EOC may apply to the county court for an injunction restraining that person from committing any further unlawful acts (ibid. sections 40 and 72).

• A complaint of unlawful discrimination under the 1975 Act must be presented to an employment tribunal not later than three months after the date on which the act complained of was done (ibid. section 76(1)).

Pregnancy

• It is not at all clear whether a refusal to employ a woman because she is pregnant (or for a connected reason) is in the same legal category as a refusal to employ a woman simply because she is a woman. Although prima facie tantamount to unlawful discrimination on grounds of sex, there may well be circumstances in which an employer's refusal to engage a pregnant job applicant could be justified before an employment tribunal.

• For example, an employer will be disinclined (understandably) to recruit a heavily-pregnant woman as a marketing manager (however well-qualified or better-qualified she may be than other candidates for the post) if one of her first duties is to exercise her undoubted skills to launch a major new product range at a time when she will be off work preparing for childbirth or having her baby - and likely to be absent from work on maternity leave for up to 52 weeks. Arguably, the employer's refusal to employ would have little to do with the woman's being pregnant. Indeed, an employer would be equally disinclined to appoint a man to the same post knowing that, within a matter of weeks, he would be going into hospital for several months, at a time when the survival of the employer's business might very well hinge on the new appointee being at work at the very time he is likely to be away. But comparing a healthily-pregnant woman with a sick man is risky, especially in the current climate. Should such a case go before an employment tribunal, the employer would need to advance a very strong case indeed.

  Note

  Section 51 of the Sex Discrimination Act 1975 allows that it is not unlawful for an employer to refuse to employ a woman if doing so would be in breach of health and safety legislation restricting or prohibiting the employment of women in certain hazardous occupations. However, in Mahlburg v Land Mecklenburg-Vorpommern [2000] IRLR 276(, the European Court of Justice (ECJ) held that it is not permissible to refuse to employ a new or expectant mother in work otherwise prohibited to her on health and safety grounds if the employment is intended to be permanent and she is the best candidate for the job. In a not dissimilar case, that of Webb v EMO Air Cargo (UK) Ltd (No. 2) [1994] ICR 770 ECJ, a woman initially recruited as a replacement for a key employee during her absence on maternity leave (with a promise of permanent employment when the person she was replacing returned to work) was dismissed when it was discovered that she too was pregnant and would be taking maternity leave at the same time as the colleague she was meant to replace. An employment tribunal, the EAT and the Court of Appeal all agreed that the woman had been dismissed not because she was pregnant but because she would not have been available to carry out her primary task of doing the work of the other employee during the latter's absence on maternity leave. Her dismissal, they said, was therefore fair. The House of Lords were not so sure. Mrs Webb had been employed for an indefinite period, even though initially employed to take over the work of a woman who would be absent for several weeks on maternity leave. Their Lordships referred the matter to the European Court of Justice (ECJ) which, on 14 July 1994, held that the woman's dismissal amounted to unlawful sex discrimination in breach of the 1976 European Union directive on equal treatment for men and women in the workplace. The ECJ also put a great deal of emphasis on the fact that Mrs Webb had been employed for an indefinite period. Had Mrs Webb been recruited specifically to replace the other employee, and had she been informed from the very outset that she would be dismissed once the permanent encumbent had returned to work, the outcome might well have been different.

Colour, race, nationality or ethnic or national origins

• Section 4 of the Race Relations Act 1976 cautions that it is prima facie unlawful to refuse or 'deliberately omit' to offer employment to a person because of his or her race, colour, nationality or ethnic or national origins, unless being of a particular racial group is a genuine occupational qualification for the job in question (ibid. section 5). If a tribunal upholds a complaint of unlawful racial discrimination, it will order the employer to pay compensation including damages for injured feelings and loss of potential earnings. With the coming into force on 3 July 1994 of the Race Relations (Remedies) Act 1994, there is no longer an upper limit on the amount of compensation that an employer may be ordered to pay in such circumstances. For further particulars, please turn to the section titled Racial discrimination elsewhere in this handbook.

  Note

  The reader will be aware that section 8 of the Asylum & Immigration Act 1996 prohibits the employment in the UK of any person aged 16 or over who is either an illegal immigrant or who does not have the legal and still valid right to seek and obtain employment during his (or her) stay in the UK. The penalty for a breach of this requirement is a fine of up to £5,000. See Foreign nationals, employment of elsewhere in this handbook.

• The Commission for Racial Equality (CRE) may, for its part, institute proceedings before an employment tribunal against any person or organisation that has either induced or attempted to put pressure on an employer to discriminate against job applicants on racial grounds. If the tribunal confirms that such pressure had been brought to bear and that the guilty party is likely to do so again, the CRE may apply to a designated county court (or to a sheriff court) for an order restraining the person or organisation concerned from committing any further unlawful acts (ibid. sections 31 and 63).

• A complaint of unlawful discrimination under the 1976 Act must be presented within three months of the date on which the act complained of was done (ibid. section 69(1)).

Disability discrimination

• Under section 4 of the Disability Discrimination Act 1995, it is unlawful for an employer (in a business or organisation that employs 15 or more people) to refuse to interview or employ an otherwise well-qualified job applicant simply because that applicant is disabled. Nor can an employer justify that refusal by claiming that the premises (ie, the building or location in which the applicant would be required to work) are not suitable for use by disabled persons in general or for the particular job applicant in the light of his (or her) disability.

• >It is also unlawful for an employer to instruct some other person or body (eg, the personnel department or an employment agency) not to interview or recruit disabled job applicants or (in the case of an agency) submit such candidates for employment.

• A disabled job applicant may complain to an employment tribunal if denied an interview or an offer of employment because of his (or her) disability. If the tribunal finds the complaint to be well-founded, it will make a declaration to that effect and will order the respondent employer (agency or organisation) to pay compensation to the complainant - including compensation for injury to feelings (ibid. section 8). For further particulars, please turn to the section titled Disabled persons elsewhere in this handbook.

Trade union membership or non-membership

• Section 137 of the Trade Union & Labour Relations (Consolidation) Act 1992 warns that 'it is unlawful to refuse a person employment because he (or she) -

  1. is, or is not, a member of a trade union, or

  2. is unwilling to accept a requirement -

     1. to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or

     2. to make payments or suffer deductions for not being a member of a trade union'.

  What this means in effect is that an employer must disregard a job applicant's membership or non-membership of a trade union when determining his or her suitability for employment. Nor is it lawful for an employer to require a job applicant to agree to pay money (to a charity, or whatever) or to have money deducted from his or her pay packet as an alternative to the payment of trade union dues. Any term in a contract of employment or collective agreement (express or implied) that purports to override an employee's statutory rights in this respect is null and void.

• A job applicant denied an interview or refused employment on grounds of his (or her) trade union membership or non-membership may complain to an employment tribunal. If such a complaint is upheld, the tribunal will order the employer to pay the complainant up to £53,500 in compensation. A complaint may also be presented if there is reason to suspect that the employer refused to entertain or process a job application because of the applicant's trade union membership or non-membership - without regard to the latter's capabilities or qualifications for the job in question.

• In some trades and industries, employers would only accept job applications from members of a particular trade union whose names had been put forward by that trade union. Such an arrangement or practice (if it still persists) is unacceptable if its effect is to exclude applications from persons who are not members of a particular trade union or of any trade union. Indeed, any employer party to such an arrangement or practice will nowadays be deemed without more to have unlawfully refused to employ a particular job applicant because he or she was not a member of a trade union (ibid. section 137(4)).

• If, on a complaint under section 137 of the 1992 Act, it is alleged that a trade union or other person threatened the employer with a strike or some other form of industrial action if he recruited a nonunion employee, the job applicant or the employer may request the employment tribunal to direct that the person who exercised that pressure be joined (or, in Scotland, sisted) as a party to the tribunal proceedings. If the complaint is upheld, the trade union official or member concerned will be ordered to pay the whole or part of any award of compensation payable to that job applicant (ibid. section 142). See Trade union membership and activities and Closed shop elsewhere in this handbook.

Religion or political opinion

• Under the Fair Employment & Treatment (Northern Ireland) Order 1998, an employer is liable to heavy penalties if he (or she) refuses to employ a job applicant because of that person's religious belief or political opinion. In practice, this means that Protestants and Catholics must be afforded equal access to job opportunities and must not be denied employment or refused an interview because of their religious or political affiliations. It is as well to note that discrimination on grounds of religion is to be outlawed throughout the UK when legislation implementing Employment Directive 2000/78/EC comes into force in the second half of 2003.

'Spent' convictions

• Section 4(2) of the Rehabilitation of Offenders Act 1974 states that a person may not lawfully be excluded from any office, profession, occupation or employment because of a 'spent' conviction. Indeed, 'where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him (or her).the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly'.

• In short, any job applicant with a 'spent' conviction has the legal right to lie about that conviction when asked by a prospective employer if he or she has ever been in prison or been convicted of an indictable offence. The exceptions to this rule are explained elsewhere in this handbook in the section titled Convicted persons, employment of.

• Although it is prima facie unlawful to refuse to employ a person on discovery that he (or she) has a 'spent' conviction, the 1974 Act does not offer a remedy for a person discriminated against in this way. At best, the applicant can apply to the court for a declaration of 'unlawfulness'. But that falls far short of any award of compensation for loss of potential earnings and injured feelings.

  Note

  To dismiss an otherwise competent employee on discovery that he (or she) had concealed details of a spent conviction (and for that reason alone) will almost certainly lead to a finding of unfair dismissal and an award of compensation (unless the employee in question was in an excepted occupation).

Activities of employment agencies and businesses

• Any employment agency that discriminates against (or denies its services to) job applicants on grounds of race, colour, ethnic origins, nationality, sex, marital status, gender reassignment, disability, or trade union membership or non-membership (whether of its own initiative or on the instructions of a client employer) could be ordered to pay the whole or part of any compensation awarded to a disgruntled job applicant.

• In the appropriate circumstances, the person (or persons) running the agency could be served with a prohibition order by an employment tribunal (at the suit of the Secretary of State) effectively prohibiting any such person from carrying on (or being in any way concerned with the carrying on) of an employment agency or business for a period of up to 10 years. A failure to comply with the terms of a prohibition order is a serious offence for which the penalty, on summary conviction, is a fine of up to £5,000 (per sections 3 to 3D, Employment Agencies Act 1973). See also Employment agencies elsewhere in this handbook.