1.

2 Explain how relevant legislative and policy frameworks of the home country influence
the selection, recruitment and employment of individuals.

Key Legislation regarding Recruitment and Selection

(Source-Sheffield University HR)

The Equality Act 2010 (See separate sheet for more detail on the protected characteristics)

The Equality Act came into force on 1 October 2010 and it aims to provide a simpler, more consistent and more
effective legal framework for preventing discrimination. The stated aim of the Act is to reform and harmonise
discrimination law, and to strengthen the law to support progress on equality. It will replace the following
equality legislation:

 the Equal Pay Act 1970

 the Sex Discrimination Act 1975
 the Race Relations Act 1976
 the Disability Discrimination Act 1995
 the Employment Equality (Religion or Belief) Regulations 2003
 the Employment Equality (Sexual Orientation) Regulations 2003
 the Employment Equality (Age) Regulations 2006
 the Equality Act 2006, Part 2
 the Equality Act (Sexual Orientation) Regulations 2007

Protected Characteristics

The Equality Act covers and enhances the same groups that were protected by existing equality legislation and
now calls them `protected characteristics´: See figure 1 below.

• age
• disability
• gender reassignment
• race
• religion or belief
• sex
• sexual orientation
• marriage and civil partnership
• pregnancy and maternity

Public sector equality duty (section 149)

The previous public sector equality duty only applied to race, disability and gender. The new single equality
duty requires public bodies to have due regard to the need to:

1. Eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Act

2. Advance equality of opportunity and foster good relations across all the protected characteristics with the
exception of marriage and civil partnership.

Ministers are also empowered under S.153 to impose specific duties upon public authorities for the purpose of
enabling better performance of the general duty contained in S.149.

Additionally, S.155 empowers ministers to impose specific duties on a public authority 'in connection with its
public procurement functions'. This power is designed to encourage the NHS & local authorities to use
procurement to encourage equality more consistently.
From this duty stems the need to have strategic and operational policy frameworks associated with delivering
this.

Equality & Human Rights Commission (EHRC)

Established on 1 October 2007, the EHRC brought together the work of the Equal Opportunities Commission,
the Commission for Racial Equality and the Disability Rights Commission. It will enforce equality legislation on
gender, race, disability and health, age, religion, sexual orientation and transgender status and encourage
compliance with the Human Rights Act 1998. It will campaign for social change and justice, has extensive legal
powers and may take legal action on behalf of individuals.

For further information visit: www.equalityhumanrights.com

Fixed-Term Employment

Legislation: Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002

Fixed-term employees should not be treated less favourably than comparable permanent employees on the
grounds that they are fixed-term employees, unless this is objectively justified in accordance with the legal
framework.

Employment of Ex-Offenders

Legislation: Rehabilitation of Offenders Act 1974

Under this Act an individual who has had a conviction for an offence may, with some exceptions, be
rehabilitated and allowed to treat the conviction as if it had never occurred. A conviction will become 'spent'
where the person has not, after a period of time, committed another serious offence. Employers may not,
under the Act, ask prospective employees if they have 'spent' convictions during the recruitment process.

Legislation: Rehabilitation of Offenders 1974 (Exceptions Order) 1975

However there are exemptions to the Act and it does not apply to certain posts or professions including
medical practitioners, dentists, nurses, and those concerned with providing elderly, sick or disabled people with
health or social services.

Criminal Records Checks

Pre-employment criminal records checks will be required for certain posts, particularly those working (i) with
vulnerable groups, such as the under 18s and people with mental health issues, and (ii) within clinical
situations.

Safeguarding Children and Vulnerable Adults

Legislation: The Safeguarding Vulnerable Groups Act 2006

This provides the legislative framework for a new vetting and barring scheme for people working with children
and vulnerable adults. The Act establishes a central database of offenders in respect of people working, or
applying to work, with children or vulnerable adults. Any person named on the list will be barred from working
with children and/or vulnerable adults, or subject to monitoring.

Eligibility to Work in the UK

Legislation: the Immigration, Asylum and Nationality Act 2006

These provisions came into force on 29 February 2008 and aim to prevent illegal migrant working in the UK.
Failure to comply with these regulations can result in the [organisation] becoming liable to pay a civil penalty of
up to £10,000 for every illegal worker.
Data Protection

Legislation: The Data Protection Act 1998

The act defines certain types of information as "sensitive data" and restrictions are imposed on employers in
relation to the collection and use of such data, including in the recruitment process e.g. seeking information on
spent criminal records is restricted to certain posts

NHS Briefing 74 / Oct 2010

More detail about the Equality Act 2010
https://www.youtube.com/watch?v=pxkC8A648JA

https://www.youtube.com/watch?v=_TbvuqRMUO4

Literature source ACAS

http://www.acas.org.uk/index.aspx?articleid=3017

The Act extends some protections to characteristics that were not previously covered, and also strengthens
particular aspects of equality law.

Types of discrimination:-Definitions

Direct discrimination-Direct discrimination occurs when someone is treated less favourably than another
person because of a protected characteristic they have or are thought to have (see perception discrimination
below), or because they associate with someone who has a protected characteristic (see discrimination by
association below).

Discrimination by association-Applies to age, race, religion or belief, sexual orientation, disability, gender
reassignment, and sex. This is direct discrimination against someone because they associate with another
person who possesses a protected characteristic.

Perception discrimination-Applies to age, race, religion or belief, sexual orientation, disability, gender
reassignment, and sex. This is direct discrimination against an individual because others think they possess a
particular protected characteristic. It applies even if the person does not actually possess that characteristic.

Indirect discrimination-Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil
partnership, disability and gender reassignment.

Indirect discrimination can occur when you have a condition, rule, policy or even a practice in your company
that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect
discrimination can be justified if you can show that you acted reasonably in managing your business, i.e. that it
is ‘a proportionate means of achieving a legitimate aim’. A legitimate aim might be any lawful decision you
make in running your business or organisation, but if there is a discriminatory effect, the sole aim of reducing
costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including showing
that you’ve looked at ‘less discriminatory’ alternatives to any decision you make.

Harassment-Harassment is “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”.

Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil
partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not
directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are
also protected from harassment because of perception and association.

Harassment by others

Applies to age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

The Equality Act makes you potentially liable for harassment of your employees by people who are not
employees of your company, such as customers or clients. You may be liable when you are aware that
harassment has taken place, and have not taken reasonable steps to prevent it from happening again.
Victimisation-Victimisation occurs when an employee is treated badly because they have made or supported a
complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An
employee is not protected from victimisation if they have maliciously made or supported an untrue complaint.

A complainant will not need to compare their treatment with that of a person who has not made or supported
a claim under the Act.

The Protected Characteristics: key points

● Age
● Disability
● Gender reassignment
● Marriage and Civil Partnership
● Pregnancy and Maternity
● Race
● Religion or belief
● Sex
● Sexual Orientation

Age-The Act protects people of all ages. However, different treatment because of age is not unlawful direct or
indirect discrimination if you can justify it, i.e. if you can demonstrate that it is a proportionate means of
meeting a legitimate aim. Age is the only protected characteristic that allows employers to justify direct
discrimination.

Disability-The Act has made it easier for a person to show that they are disabled and protected from disability
discrimination. Under the Act, a person is disabled if they have a physical or mental impairment which has a
substantial and long- term adverse effect on their ability to carry out normal day-to-day activities, which would
include things like using a telephone, reading a book or using public transport.

The Act puts a duty on you as an employer to make reasonable adjustments for your staff to help them
overcome disadvantage resulting from an impairment (e.g. by providing assistive technologies to help visually
impaired staff use computers effectively).

The Act includes protection from discrimination arising from disability. This states that it is discrimination to
treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to
make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or
other person acting for the employer knows, or could reasonably be expected to know, that the person has a
disability. This type of discrimination is only justifiable if an employer can show that it is a proportionate means
of achieving a legitimate aim.

Additionally, indirect discrimination covers disabled people. This means that a job applicant or employee could
claim that a particular rule or requirement you have in place disadvantages people with the same disability.
Unless you could justify this, it would be unlawful.

The Act also includes a provision which makes it unlawful, except in certain circumstances, for employers to ask
about a candidate’s health before offering them work.

Gender reassignment-The Act provides protection for transsexual people. A transsexual person is someone
who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a
person to be under medical supervision to be protected – so a woman who decides to live as a man but does
not undergo any medical procedures would be covered.

It is discrimination to treat transsexual people less favourably for being absent from work because they
propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if
they were absent because they were ill or injured.
Marriage and civil partnership-The Act protects employees who are married or in a civil partnership against
discrimination. Single people are not protected.

Pregnancy and maternity A woman is protected against discrimination on the grounds of pregnancy and
maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled. During
this period, pregnancy and maternity discrimination cannot be treated as sex discrimination.

You must not take into account an employee’s period of absence due to pregnancy-related illness when making
a decision about her employment.

Race-For the purposes of the Act ‘race’ includes colour, nationality and ethnic or national origins.

Religion or belief-In the Equality Act, religion includes any religion. It also includes a lack of religion, in other
words employees or jobseekers are protected if they do not follow a certain religion or have no religion at all.
Additionally, a religion must have a clear structure and belief system. Belief means any religious or
philosophical belief or a lack of such belief. To be protected, a belief must satisfy various criteria, including that
it is a weighty and substantial aspect of human life and behaviour. Denominations or sects within a religion can
be considered a protected religion or religious belief.

Discrimination because of religion or belief can occur even where both the discriminator and recipient are of
the same religion or belief.

Sex-Both men and women are protected under the Act.

Sexual orientation-The Act protects bisexual, gay, heterosexual and lesbian people.

Equality Act –

Some changes

Positive action-key updates

As with previous equality legislation, the Equality Act allows you to take positive action if you think that
employees or job applicants who share a particular protected characteristic suffer a disadvantage connected to
that characteristic, or if their participation in an activity is disproportionately low.

The Equality Act 2010 allows you, if you want to, to take a protected characteristic into consideration when
deciding who to recruit or promote. However, you can only do this when you have candidates who are “as
qualified as” each other for a particular vacancy. This does not mean they have to have exactly the same
qualifications as each other, it means that your selection assessment on a range of criteria rates them as
equally capable of doing the job.

You would also need some evidence to show that people with that characteristic face particular difficulties in
the workplace or are disproportionately under-represented in your workforce or in the particular job for which
there is a vacancy. In these circumstances, you can choose to use the fact that a candidate has a protected
characteristic as a ‘tie-breaker’ when determining which one to appoint.

You must not have a policy of automatically treating job applicants who share a protected characteristic more
favourably in recruitment and promotion. This means you must always consider the abilities, merits, and
qualifications of all of the candidates in each recruitment or promotion exercise. Otherwise, your actions would
be unlawful and discriminatory.

Pre-employment health-related checks

The Equality Act limits the circumstances when you can ask health-related questions before you have offered
the individual a job. Up to this point, you can only ask health-related questions to help you to:

 Decide whether you need to make any reasonable adjustments for the person to the selection process
 Decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job
  Monitor diversity among people making applications for jobs
 Assure yourself that a candidate has the disability where the job genuinely requires the jobholder to
have a disability.

A jobseeker cannot take you to an Employment Tribunal if they think you are acting unlawfully by asking
questions that are prohibited, though they can complain to the Equality and Human Rights Commission.
However, if you do ask these prohibited questions, and not employ the applicant, they may bring a claim of
discrimination against you and the burden of proof would be on you to demonstrate that you had not
discriminated.

Once a person has passed the interview and you have offered them a job (whether this is an unconditional or
conditional job offer) you are permitted to ask appropriate health-related questions.

Mini-Case Activity
A London commuter town and seaside resort has a population of some 75,000 of which around 15% at the last
Census were from minority ethnic groups. A Local GP has a client list of 800 that reflects the Census
demographics and five full time partners. The GP surgery has clear equality policies in place and has trained
staff in these issues including the Equality Act 2010. Furthermore it has robust anti bullying policies for all staff
to identify and tackle inappropriate harassing behaviour.

The Practice is recruiting for a new partner. None of the existing five partners are from a BEM demographic.
The practice runs an interview selection process where all candidates are scored against a range of job based
questions. The selection panel also objectively assess the experience and qualifications of each candidate.

At the end of the selection process, two candidates have equal scores. Both are women. One of the women is
black. The Chair of the recruitment committee suggests it is important that the new position reflects the local
population. The Chair gives feedback to the unsuccessful candidate and explains the position the Practice has
taken and why.

 What type of action is this assumed to be under the Equality act 2010?
 Is the process that has been followed conforming to the law and to good practice? Give reasons to
support your views.
The Guardian- Health Care Network: Monday 14 April 2014
https://www.theguardian.com/healthcare-network/2014/apr/14/nhs-institutionally-racist

Is the NHS institutionally racist? - Roger Kline

A new report highlights that there are very few senior healthcare professionals from BME
backgrounds

First published on Monday 14 April 2014 09.15 BST

I have bookshelves of reports detailing the unfair treatment many NHS Black and Minority Ethnic
(BME) staff receive in recruitment, promotion, training, discipline and pay. The Snowy White Peaks of
the NHS suggests such unfair treatment extends to every level of leadership and governance of the
NHS, with important adverse consequences for patients.

Latest statistics show that 20% of nurses and 37% of doctors in the NHS are from BME backgrounds.
Yet just 6% of senior and very senior managers in the NHS are from a BME background and just over
7% (and falling) of NHS trust board members are in this category.

It's worse in London. Over two fifths of London's population and its NHS staff are from BME
backgrounds, yet just 8% of NHS trust board members are. London currently has just one BME trust
chair and not one BME chief executive. Almost two fifths of London's NHS trust boards have no
voting BME members at all. The proportion of trust board members from BME backgrounds has
actually fallen in recent years while the proportion of BME staff and local populations has grown. The
likelihood of white staff in London are three times more likely to become senior or very senior than
BME staff.

The inevitable impact on staff morale is that a quarter of BME staff consistently report they are
discriminated against and that they are denied a fair opportunity to develop their career. If BME staff
are treated unfairly, patients pay a price. When panels appoint "people like us" during recruitment
and promotion, then patients may not get the best possible staff. When BME staff are treated
unfairly once employed, there is a cost to those staff, to their employers and most importantly to
patients.

Extensive research by Michael West, Professor of Organisational Psychology at Lancaster University

Management School and his team has established a link between the treatment of BME staff and the
care that patients receive. The workplace treatment of BME staff is a good barometer of the climate
of respect and care for all within NHS trusts and correlates with patient experience.

Research shows lack of diversity in teams, especially at the top, is not good for innovation yet the
NHS needs to transform its care. As the NHS's own guidance for boards points out, if they are
unrepresentative of their local communities, they will have difficulty ensuring care is genuinely
patient-centred.

Ministers assure us that things are improving. Most recently, Earl Howe assured the House of Lords
that there was an increase in the proportion of BME nurse managers and added that "although these
are not substantive rises, this demonstrates that we are travelling in the right direction". His own
figures actually showed the opposite, a significant fall over the last decade.
Among national bodies commissioning and regulating services, the picture is similar. BME executives
are entirely absent and women are disproportionately absent, from the boards of NHS England,
Monitor, the NHS Trust Development Authority, Heath Education England, and the Professional
Standards Authority.

At present, it is unclear who has national responsibility for NHS workforce race equality (or indeed
any workforce equality). There is no coherent evidence based strategy for improving things; rather it
is for individual employers to address equality. But there is no effective framework for incentivising
those who take the issue seriously, or sanctioning those who don't. Einstein's definition of insanity
was to keep doing the same thing and expect different results. More of the same unsuccessful
strategy won't do.

The 2004 NHS Race Equality Action Plan acknowledged the challenge. A decade later every single
mechanism it put in place has been dismantled. No wonder its creator, former Lord (Nigel) Crisp
recently lamented the lack of progress.

Blame won't help, but serious leaning will. Why not adopt the same principles in tackling this issue as
we now do with other threats to good patient care? Many NHS employers do not even know the
scale or shape of their local problems since they don't collect and analyse critical data on race
equality.

In his last interview before retiring, Sir David Nicholson, chief executive of NHS England said he
"regrets not making more progress in increasing the number of black and minority ethnic senior NHS
leaders," and described the barriers to improvement as a "systemic problem". Is the NHS
institutionally racist?

How the NHS responds to this new evidence that discrimination is systemic will demonstrate
whether it is. There are many people in the NHS, black and white, who recognise this is a challenge
we have to meet, not least for the sake of patients. Let's see if we do.

Roger Kline is research fellow at Middlesex University business school and the author of The Snowy
White Peaks of the NHS

Activity:

Working in teams of 5-6, please read the article and discuss the core issues raised from a personal
and organisational perspective. Be prepared to discuss your findings with others in the class.

1. How should the 2010 Equality act operate and how does it in reality with regard to
recruitment and selection?
2. What are the implications for reputational image of the NHS associated with recruitment and
development diversity issues?
3. What are the implications for the long term effectiveness of the NHS under this claimed
regime?
4. From previous or current experience what have been the recruitment practices employed
with regard to the 2010 Employment act?
5. What strategies may work in making recruitment, selection and promotion more
representative and potentially fairer given the state of affairs claimed in the article?