The following guide provides information in relation to Discrimination within the workplace, Data Protection, AI use, The Right to Work in the UK and Employing Children.
Equal Opportunities — Discrimination
The Equality Act 2010 protects individuals from discrimination throughout the employment lifecycle, from recruitment through to contract termination.
This means that even before an employment relationship is created, job applicants are protected by law from unfair treatment during the recruitment and selection process.
Unlawful discrimination is unequal treatment based on a protected characteristic. There are 9 different set of protected characteristics:
- Age
- Disability
- Gender/sex
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion and belief
- Sexual orientation
Under the Equality Act 2010, employers must make reasonable adjustments for disabled candidates to prevent disadvantage. For example, failing to provide extra time for an assessment to a candidate with dyslexia is unlawful. This form of disability discrimination does not require intent simply not making adjustments can breach the law.
Treating someone unfairly because of something related to their disability, rather than the disability itself. For example, refusing to hire a candidate because they need time off for medical appointments. This differs from direct discrimination, as it targets the effects of the disability, such as absences or necessary adjustments.
There are four types of discrimination recognised by law which employers need to be aware of during the recruitment process.
- Direct discrimination – less favourable treatment of individuals because of their protected characteristic. For example, rejecting a qualified female job applicant due to their gender.
- Indirect discrimination – implementing policies, practices, requirements or rules that put individuals who share a protected characteristic at a particular disadvantage and puts the individual at that disadvantage. The individual does not necessarily have to share the protected characteristic. For example, a job advertisement requiring a certain number of years’ experience, can indirectly disadvantage younger candidates who may be equally qualified as older candidates, but lack the specified experience.
- Harassment – unwanted conduct related to a protected characteristic that has the purpose or effect of violating an individual’s dignity or creating an offensive, hostile degrading, humiliating or intimidating work environment. For example, making a joke about an individual’s religion or sexual orientation. Sexual harassment can occur if there is unwanted conduct of a sexual nature that has the proscribed purpose/effect.
- Victimisation – subjecting an individual to a detriment because they have done a ‘protected act’, for example, brought a claim of discrimination against a former employer, given evidence in a claim for discrimination or raised a grievance that they have been discriminated against. For example, an internal candidate is not selected because they have raised an internal grievance alleging that they have been discriminated against
The Equality Act not only covers discrimination relating to the individual in question; it can also relate to:
Discrimination by association
Differential treatment based on a person's connection or relationship with another individual who has a protected characteristic, such as disability, race, religion, or sexual orientation. For instance, if an employee is passed over for promotion because her son has a disability and her manager assumes she will have increased caregiving responsibilities, this constitutes discrimination by association. The employee herself does not have a disability but experiences adverse effects due to her association with someone who does.
Discrimination by perception
Unfair treatment based on a mistaken belief that someone has a protected characteristic. For instance, if a job applicant is rejected because the employer assumes he is gay when he is not. This decision is discriminatory regardless of the truth.
Examples of Discrimination by Perception
- A job applicant is rejected because the employer assumes they are gay (even if they are not).
- A person is refused service because staff believe they are Muslim based on appearance, even if they are not.
- An employee is excluded from projects because colleagues think they have a mental health condition.
Examples of Unlawful Discrimination in Recruitment
Job Advert:
- A company advertises a role saying “must be under 30” — this is age discrimination.
- A job advert says “native English speakers only” — this could be race or nationality discrimination
- An advert for a warehouse job says “must be physically fit” — this might exclude people with disabilities and be disability discrimination.
Interview:
- Asking a woman if she plans to have children — this is sex discrimination.
- Asking someone about their religion or if they will need time off for religious holidays — this could be religion or belief discrimination
- Making jokes about someone’s accent or background during the interview — this could amount to harassment related to race under the Equality Act 2010.
Selection Process:
- Failing to make reasonable adjustments for a candidate with a disability — this is disability discrimination.
- Choosing a candidate because they “fit in better with the team” when that team lacks diversity — this could be indirect discriminatory towards candidates who, because of a protected characteristic, do not fit in with the team. It could also potentially amount to direct discrimination.
- Not hiring someone because they previously raised a complaint about discrimination — this is victimisation.
Statements and Comments:
- Saying “we don’t want someone too old to learn new tech” — this is age discrimination.
- Saying “we’re looking for someone who’s not too religious” — this is religion discrimination.
- Saying “we don’t want someone who might need time off for childcare” — this is sex discrimination.
Who can be held responsible for Discrimination in Recruitment
If someone is treated unfairly during recruitment, they can make a legal claim against:
-
The Employer
Employers are vicariously liable for discrimination or harassment carried out by their staff during the recruitment process even if the employer did not know about it or gave instructions not to discriminate.
This includes actions by managers, HR staff, or anyone involved in hiring. Employers can defend themselves if they can prove they took “all reasonable steps” to prevent discrimination, like providing proper training, clear policies and standardised interview materials.
-
Employees and Managers
Individuals who carry out discrimination or harassment can be personally liable, even if the employer is also held responsible.
If someone knowingly helps the employer discriminate, they can be held accountable too.
-
Recruitment Agencies and Consultants
If an employer uses a recruitment agency, and the agency discriminates with the employer’s authority, both can be liable.
Even if the agency acts without permission, it may still be directly liable under the law as an “employment service provider”
-
Publishers of Job Adverts
If a job advert is discriminatory (for example, “must be under 30”), the publisher of the advert can also be held responsible.
Data Protection — GDPR
As part of the recruitment process, an employer will be provided with personal information on potential applicants, some of which may amount to sensitive personal data.
The ICO’s Employment Practices Code outlines how employers should handle personal data during recruitment in compliance with UK GDPR and the Data Protection Act 2018.
The UK General Data Protection Regulation imposes strict requirements on employers around the security of, and transparency about, the personal data that they process.
-
Transparency and Privacy Notices
Employers must provide clear privacy notices to job applicants explaining:
- What data is collected and why.
- How it will be stored and processed.
- How long it will be retained.
- Whether it will be held electronically and/or physically.
- This information can be included in job advertisements, application forms, careers site and/or company websites to ensure candidates are informed from the outset.
-
Candidate Rights
Applicants have rights under GDPR, including:
- Access to their data.
- Rectification of inaccuracies
- Erasure of data (the “right to be forgotten”).
-
Data Minimisation
Only data necessary for recruitment should be collected. Avoid gathering excessive or irrelevant information.
-
Consent for Sensitive Data
If processing sensitive data (for example, data on health, diversity), employers must obtain explicit, informed consent from candidates.
-
Use of Artificial Intelligence (AI) in Recruitment
AI tools are increasingly used for:
- Screening CVs.
- Conducting interviews.
- Prioritising applications.
- However, human oversight remains essential. Employers must ensure AI use complies with legal standards and does not result in unfair or discriminatory outcomes.
-
Health Data and Medical Reports
Employers must:
- Justify the need for medical examinations.
- Inform applicants early.
- Ensure assessments are relevant to the role.
- Obtain written consent before contacting a GP.
- Allow applicants to review and redact reports.
For more information on Data Protection, see our Guide to Data Protection and also the Information Commissioner’s Office Code of Practice, which sets out guidance on the discharge of an employer's obligations under data protection legislation with regards to recruitment and selection.
Artificial Intelligence (AI)
Many employers use AI-powered tools at different stages of recruitment, including sourcing, screening, interviewing, and selecting candidates.
For example, virtual assistants or chatbots can answer questions from applicants, while AI algorithms review CVs and application forms to highlight those that match certain keywords and act as a parsing tool.
Employers are advised to maintain human oversight as a core component of workplace operations to promote fairness, accountability, and accuracy. Incorporating ethical judgment through human involvement mitigates the risk of errors from automated systems and supports employee trust as well as legal compliance.
For guidance on legal considerations related to the use of AI-powered tools in employment settings, including recruitment, please refer to the Government publication: Responsible AI in Recruitment - GOV.UK
Given the legal risks, employers should tread cautiously when using AI-driven tools as part of recruitment processes.
While the use of AI has clear benefits (for example, in relation to efficiency), it also comes with risks in the context of recruitment.
Organisations looking to use AI tools to assist in the recruitment consider the Information from the Commissioner.
Thinking of using AI to assist recruitment? Our key data protection considerations | ICO
The Right to Work in the UK
Under the Immigration, Asylum and Nationality Act 2006, it is a criminal offence to knowingly employ someone who does not have the right to work in the UK.
Before making a job offer, employers have a mandatory obligation to verify that applicants have the legal right to work in the UK.
This is for all applicants.
This involves checking documentation before the candidate begins employment.
Government guidance provides information on a right to work and a checklist for employers, detailing the required documents for verification. Checking a job applicant's right to work - GOV.UK
By conducting checks in the correct way, employers ensure that they are hiring individuals who are legally permitted to work, and where there are allegations of non-compliance, evidence of a compliant right to work check can provide the employer with grounds to challenge proposed enforcement action.
Right to Work Checks
An individual’s immigration status determines how they can prove their right to work, either through manual document checks or the Home Office’s online system.
Manual Checks
Manual checks are used when physical documents are presented, such as passports and birth certificates.
This method applies to British/Irish nationals and some non- European Economic Area nationals (EEA). You are required to take copies of the documents while the person is physically present. You should confirm the documents are genuine, ensure they belong to the person presenting them, check the photograph and the date of birth match to the individual, verify that the documents allow the person to do the work offered and look for signs of tampering or forgery. You must make a clear copy of each document record the date of the check, confirm that the check was done before the employment commenced, for passport, copy the photograph page, any visa endorsements and expiry dates and for birth certificate, copy of the certificate and the NI number evidence.
Online Checks
Online checks are required for individuals with digital immigration status, such as those under the European Union (EU) Settlement Scheme or holding an eVisa.
Employers must use the Home Office online service with a share code provided by the employee.
Digital Checks via IDSP
Digital checks via Identity Document Validation Technology (IDVT) are for British and Irish citizens. These checks are conducted by certified Identity Service Providers.
Employees with indefinite permission to work provide documents from List A, while those with time-limited permission must provide evidence from List B.
Employers are legally obligated to verify these documents and ensure any follow-up checks are conducted before the right to work expires.
List A – Indefinite Right to Work
Only one check needed before employment.
Examples:
- British/Irish passport (even expired)
- UK birth/adoption certificate + NI number
- Certificate of naturalisation
- Immigration status document with indefinite leave
List B – Time Limited Right to Work
Requires follow-up checks:
- Group 1: Valid until visa expiry
- Group 2: Valid for 6 months only
Examples:
- Current passport with limited leave
- Certificate of application + Positive Verification Notice (PVN)
- Application Registration Card + PVN
Follow up Checks
Follow-up checks must be done before visa expiry or every 12 months for Group 2.
If an employee's status is pending, employers must use the Employer Checking Service to obtain a PVN, which provides a statutory defence for 6 months.
Loss of Right to Work
If an employee loses their right to work, the employer must terminate the employment.
Continuing employment risks civil and criminal penalties, and employers may lose their sponsor licence, affecting other migrant workers.
Penalties for Non-Compliance
- Civil penalties: up to £60,000 per illegal worker.
- Criminal penalties: unlimited fines and up to 5 years’ imprisonment for directors/managers.
- Home Office can issue closure notices and compliance orders.
Sponsorship & Points Based System
Employers need a sponsor licence to hire foreign nationals under the points-based system.
For sponsorship purposes, the worker routes are:
- Skilled Worker
- Global Business Mobility – Senior or Specialist Worker
- T2 Minister of Religion
- International Sportsperson
For sponsorship purposes, the ‘Temporary Worker’ routes are:
- Charity Worker
- Creative Worker
- the following Global Business Mobility (GBM) routes:
- Graduate Trainee
- UK Expansion Worker
- Service Supplier
- Secondment Worker
- Government Authorised Exchange
- International Agreement
- Religious Worker
- Scale-up
- Seasonal Worker
Minimum salary thresholds and job skill levels apply.
Special Categories
- Some individuals can work without sponsorship (e.g. UK citizens, settled European Economic Area (EEA) nationals, refugees).
- Students and Youth Mobility Scheme participants have limited work rights. Student visas prioritise full-time study, allowing limited work: up to 20 hours per week during term (10 hours if below degree level) and unlimited hours during holidays. Only students on full-time degree level courses at licensed institutions may work, with most jobs permitted except self-employment, business activity, professional sport, or full-time permanent roles. The Youth Mobility Scheme is a temporary visa allowing eligible people to live, work, and study in the UK for up to two years (three for some nationalities). Self-employment is permitted under certain conditions, but professional sports, entertainment, and access to public funds are not allowed, nor can the visa be extended
- Supplementary employment is allowed under certain visa categories.
Employing children
When it comes to employing children in the UK, it is crucial to understand the legal working age and the restrictions in place to protect their well-being. In the UK, the legal working age for children is 13 years old.
However, there are specific provisions in place for children involved in the performing arts industry, such as acting and modelling.
Young performers can start working from as early as birth, with additional regulations and considerations for their involvement.
When employing children in the UK, it is crucial for organisations to understand and adhere to work hour limitations to ensure compliance with child labour laws.
These limitations vary depending on the child’s age and the time of year, including term time and school holidays.
Work Experience and Children
The law allows children in their last two years of compulsory schooling (i.e. aged 14 to 16 years) to take part in work experience schemes as part of their education, provided that the arrangement is approved by a local education authority or the governing body of the school.