Discrimination in the recruitment and selection of employees
The Equality Act does not restrict an employer’s right to choose the candidate it considers the best for a particular job. The Act aims to prevent situations in which a person is appointed unjustly on the basis of gender when another candidate would have been more qualified.
This also applies to situations where employees are selected from within the workplace for training programmes or new roles. Applicants must not be discriminated against on the grounds of pregnancy, childbirth, parenthood or family responsibilities.
Furthermore, the employer must not act in a way that results in a person being in an unfavourable position in these situations due to gender identity or gender expression.
A finding of discrimination does not require intentionality or negligence by the employer.
When there are both male and female applicants, the employer is to carry out a comparison of merits. The employer's own previously set selection criteria are of central importance in the comparison of merits. Attention is usually given to applicants’ qualifications, previous work experience, and any qualities, knowledge, and skills that could prove useful in the job and that can therefore be considered as additional merits.
The employer may choose to specifically hire a man or a woman for the task without being guilty of discrimination if this is based on weighty and acceptable grounds related to the nature of the job or the task. For example, a theatre may want to hire a male actor, as this is required by the role, or the working relationship may be so personal, for example when caring for an elderly person in their home, that they specifically want to hire a man or a woman.
On the whole, an acceptable reason is required if, according to the general criteria set, the most qualified applicant is not chosen. An acceptable reason may for example be a difference in personal suitability between the candidate who was selected and the candidate who was not. It is up to the employer to prove that such a reason exists.
The discriminated party's right to demand compensation
A person has the right to demand compensation from the employer in court if they have been discriminated against during recruitment Compensation can be demanded whether or not a complaint has already been made on the decision or conduct that is suspected of being discriminatory.
