Discrimination during recruitment and job applications: what the law protects

Employment law does not start on your first day of a new job, the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a... protects you from the moment an employer starts recruiting, through the advert, the application form, the interview, and the offer. That protection doesn’t depend on you ever being hired. If you never get the job, you can still have a discrimination claim.

What counts as discrimination at the application stage

Direct discrimination, indirect discrimination, and victimisation work the same way at the application stage as anywhere else in employment. Direct discrimination means being treated worse because of a protected characteristicOne of the nine characteristics listed in the Equality Act 2010 against which it is unlawful to discriminate. They include age, disability, race, sex, religion or belief, and sexual orientation. If yo.... Indirect discriminationA rule or policy that applies to everyone equally but ends up putting people with a particular protected characteristic, like age or sex, at a disadvantage. It's unlawful under the Equality Act 2010 u... is a rule that applies to everyone but disadvantages people who share your characteristic. VictimisationBeing treated badly because you've raised a complaint, supported someone else's complaint, or done something else the law protects, such as raising a grievance or whistleblowing. It is unlawful in its... means being rejected because you’d previously raised a discrimination complaint elsewhere. Nine characteristics carry this protection. Age, disability, and gender reassignment are three of them. Marriage and civil partnership, pregnancy and maternity, and race make up three more. The last three are religion or belief, sex, and sexual orientation.

The practical difference at the recruitment stage is evidence. You were never inside the organisation. You rarely see the shortlisting notes, the interview scoring, or the reasons another candidate was preferred. That’s what the evidence-gathering routes further down this page are for.

Discriminatory job adverts

A job advert is unlawful if it states, or implies, that people with a particular protected characteristic need not apply. It’s also unlawful if it’s worded in a way that would deter them: “recent graduate” used as a proxy for age, or “native English speaker” specified where fluency, not nationality, is what’s actually required.

Employers can lawfully restrict a role to people who share a protected characteristic only where it’s a genuine occupational requirementA real, job-specific reason an employer can restrict a role to people with a particular protected characteristic, like requiring a specific ethnicity for an acting role. It has to be proportionate to ..., meaning a real, proportionate need for that characteristic. An actor cast to play a specific ethnicity, or a support workerA legal category that sits between employee and self-employed. Workers are entitled to certain rights including national minimum wage, paid holiday, and protection from unlawful deduction from wages, ... role at a women’s refuge restricted to women, are the standard examples. Employers can also use positive actionSteps an employer takes to encourage or support people from a group underrepresented in their workforce, such as targeted outreach or using it as a tie-breaker between equally qualified candidates. It...: encouraging applications from an underrepresented group, or treating a candidate from that group more favourably as a tie-breaker between two equally qualified candidates. Positive action is not the same as positive discrimination, which remains unlawful. An employer can’t hire the weaker candidate solely because of a protected characteristic.

Adverts, as opposed to how you personally were treated, are dealt with by the Equality and Human Rights Commission, not an employment tribunalAn independent court that hears disputes between employees and employers. It is free to bring a claim as a claimant, and most hearings take place in public.. The EHRC can investigate the advert itself even if you never applied for the role.

Questions an employer can’t legally ask you

Health and disability questions are largely off-limits before a job offer exists, on paper or in person. The narrow exceptions are checking you can carry out an essential function of the role once reasonable adjustmentsChanges an employer must make under the Equality Act 2010 for a disabled employee, where without them the employee would be at a substantial disadvantage compared to non-disabled colleagues. What coun... are factored in, anonymous diversity monitoring, and establishing whether a genuine occupational requirement applies. That changes once a job offer has been made, even a conditional one. Health questions become lawful because the employer needs that information to decide on reasonable adjustments or, in rare cases, to justify withdrawing the offer. Asking before the offer, when none of the narrow exceptions apply, is itself unlawful, regardless of what the employer does with the answer.

Employers can ask your date of birth for legitimate purposes, right to work checks and DBS applications among them. Using it to screen out applicants by age is direct age discrimination. “Overqualified,” “recent graduate,” and “digital native” are phrases tribunals treat as age discrimination in disguise.

Being asked about children, or about family plans, is not against the law by itself. Using the answer to reject an application is. Pregnancy and maternity discrimination doesn’t require you to already be pregnant when you applied. A planned or recent pregnancy is enough.

Criminal record and DBS checks

Most convictions become “spent” after a fixed rehabilitation period under the Rehabilitation of Offenders Act 1974. Once spent, an employer generally can’t ask about them or hold them against you. The main exceptions are roles requiring an enhanced DBS check, working with children or vulnerable adults, and some financial and legal roles, where spent convictions can still be disclosed and considered.

Outside those exempted roles, rejecting someone for a spent convictionA criminal conviction that no longer has to be disclosed once enough time has passed under the rehabilitation period rules. Most employers can't ask about it or hold it against you once it's spent. they weren’t obliged to disclose can breach the Rehabilitation of Offenders Act 1974. Depending on the circumstances, it can also overlap with race or disability discrimination where conviction data is being used as a proxy for something else.

Right to work checks vs discrimination

An employer is legally required to check every successful applicant’s right to work in the UK. That part isn’t optional, and it isn’t discriminatory to ask for it, provided it’s asked of every candidate equally at the same stage. It becomes discrimination the moment it’s applied unevenly. Asking only candidates who “look or sound foreign” for their right-to-work documents, while UK nationals aren’t asked at all, is a textbook race discrimination claim, one the Home Office’s own guidance to employers explicitly warns against.

Job offers withdrawn after acceptance

A job offer, once accepted, creates a contract. Withdrawing it isn’t automatically unlawful, but the reason matters. An offer withdrawn because a reference reveals a disability, a pregnancy becomes apparent, or a DBS check surfaces a spent conviction that shouldn’t have been considered, is treated the same as any other discriminatory decision, just later in the process. Because a contract exists at this point, you may also have a breach of contractWhen one party to an employment contract fails to comply with one of its terms without a lawful reason. Your employer breaching a significant term of your contract can entitle you to resign and claim ... claim running alongside any discrimination claim.

Reasonable adjustments during the application process

The duty to make reasonable adjustments applies to job applicants, not just existing employees. Extra time in a written test, an interview format changed to avoid a group exercise, and step-free access to the interview venue are all standard examples. You can ask for an adjustment before your employer even knows you’re disabled. Once you’ve asked, they do need to know. Refusing without a good reason is its own discrimination claim, separate from how you were subsequently scored.

If you think you’ve been discriminated against

You’re entitled to request any personal data an organisation holds on you through a subject access requestA formal request to an organisation asking for a copy of the personal data they hold about you. Employers must normally respond within one month. under UK data protection law. That can surface interview notes and scoring sheets you’d otherwise never see. You can also send the employer a set of direct questions about the reasons for your rejection. There’s no longer a statutory questionnaire procedure, but a paper trail of your questions and their answers, or their refusal to answer, can still support a tribunal claim.

A discrimination claim goes to an employment tribunal, and you must start ACAS early conciliation first. The time limit is short, normally 3 months less one day from the discriminatory act. Don’t wait for a final answer from the employer before checking the clock.