Discrimination by non-advertisement

[Hubert B]

Is discrimination by not advertising a position illegal?

For example if a company has a strict policy of recruiting only from a restrictive race-gender-religion subset of the population but never advertises a job and only recruits from personal networks.

Is there a requirement to advertise?

 

[Newchodge]

Is discrimination by not advertising a position illegal?

For example if a company has a strict policy of recruiting only from a restrictive race-gender-religion subset of the population but never advertises a job and only recruits from personal networks.

Is there a requirement to advertise?

No, but someone who feels they were discriminated against by the failure to advertise could, potentially have a claim.

 

[Jessica A.]

Not at all. I think it's the company's prerogative to choose whom they want to employ especially if the position is "uncommon" like it requires a lot of skills per se. Some companies would rather hire people who are recommended by their own staff because most of the time that person will almost always turn out to be a good hire.

 

[Newchodge]

Not at all. I think it's the company's prerogative to choose whom they want to employ especially if the position is "uncommon" like it requires a lot of skills per se. Some companies would rather hire people who are recommended by their own staff because most of the time that person will almost always turn out to be a good hire.

Do you have any understanding of UK employment laws?

 

[Hubert B]

Thanks for these replies. It does seem unsatisfactory. In a situation like this no one person is discriminated against in particular. But there definitely is discrimination and being based on gender/race/religion it is of the type that is illegal.

 

[Newchodge]

Thanks for these replies. It does seem unsatisfactory. In a situation like this no one person is discriminated against in particular. But there definitely is discrimination and being based on gender/race/religion it is of the type that is illegal.

You could try a referral to the Equalities Commission, or whatever it is called now, but the laws on discrimiknation tend to focus on the individual rather than the group. If no-one has suffered discrimination there is little the law can do.

 

[Nord20]

Seems to be two separate issues being conflated here.

Discriminating on race/gender/religion is most definitely illegal.

Not advertising a job doesn't imply discrimination on any of the above though, does it?

And how would you prove the job was not advertised (in a court of law)?

What constitutes advertising? If I put a post-it note with "job available - call this number" on a random wall somewhere between midnight and ten past midnight, for just one night, then technically, I have advertised the job.

If I place an ad in a Kosher butchers, am I discriminating against people of other religions, as they aren't likely to go into a Kosher butcher?

The above are not rhetorical - I'm genuinely interested to know.

Newchodge thinks that failure to advertise could potentially lead to a successful claim and if I was a betting man, I'd bet on her being right every time (never seen her say something she wasn't able to convincingly defend).

I'd like a hypothetical though as I can't get my head around what situation might lead to such a claim being successful.

I'm interested as we sometimes do employ people who approach us looking for work, as they've hit us at just the right time as some shifts become available. We're always getting CVs sent to us, so we rarely actively advertise.

 

[Newchodge]

OK I'll try a hypothetical.

I write to x company setting out my CV and asking whether they have a suitable opening for me. They respond saying, as is their right, that they have nothing. On the same day they write to a person I know, who has no open connection with the company, offering them a job for which I am perfectly suited. The person they write to is a different gender/religion/race etc. and less well suited to the job.

That may give a possible basis for a claim but it would be very difficult.

There would have to be some connection between the employer and the potential claimant - hence the initial letter. It would be more straightforward if the potential claimant were already an employee and complaining about the lack of promotion opportunity.

 

[Nord20]

Ah, gotcha - and scary, as that does happen with us. People send us CVs all the time and we certainly don't inform all of them every time we have shifts available.

Obviously we're not talking about people sending us a CV the same day as we offer a new opening to someone else, but clearly it's something for me to consider and review.

Thank you Cyndy

 

[Spectre]

Employment law in this country is a joke, and has been changed through successive governments into making applicants/employees have more rights than the employer.
The problem is that where the employer is a large business or governmental organisation, there is the capacity for substitution, but the law as enginesered affects the small employer in the same way,

I remember in my youth, a certain multi national employer required employees to have different physical qualities in different departments. Namely in one department, an applicant needed to have large hands, so as to avoid the risk of accidents. They may have interviewed 10 people and ruled 5 out because of the size of their hands. Nowadways, that is discrimination, but it was all down to the size of the lathes.

Why is that an employer cannot take on a person without having to look over their shoulder and ensuring that no employment laws are breached and take them on probation without fear of prosecution? As I am based in Northern Ireland, the law is even more tainted towards religious discrimination.

I have a client who has an excellent recruitment model................

Put in an advertisement for a member of staff in the hospitality industry...... His ideal candidate is a female , post 45, and at least 5' 6", hygenic and has a brain.......

Getting that advert passed by the job centre was a nightmare as it was contrary to age discrimination, sex discrimination, height discrimation etc

In reality, the height issue was to do with witching gas off in the cold store, and small people couldn't do it. The job centre were more interested in putting in a qualifications section to wed out the no hopers, yet the best barmaid in the place had no qualifications.

What actually happened was that there were over 200 applicants, and remember that people on the dole must be seen to apply.

Of the 200 applicants, 120 were male, so they were chucked in the bin as the employer wanted a female but could not publicly say so due to employment law

All foreigners were deleted, as the client does not want some immigrant. That reduced the pool by half

Of the 40 females left most were under 40, so got chucked

Of the remainder their profiles were searched on facebook and only 3 people were chosen, as the others ended up looking like nut jobs.

Out of the 3 who were contacted, the hours suited one, as the other two had part time jobs.

Who is in the right in this scenario? The employer who is trying to generate income to increase the GDP, or the liberal employment lawyers?

 

[Newchodge]

There is no such thing as height discrimination.

There is nothing wrong with requiring that people have large hands, as long as it is a genuine requirement of the job.

A huge number of people moan about our restrictive employment laws when they actually don't know what they are and work from anecdote. The reality is that the employer has huge power over the employee - there was a thread last week where it was absolutely clear that the employer was breaking the law and the employee was advised by several people on this forum not to do anything about the law breaking in case they were seen as a trouble maker.

As for deleting all foreigners, words just fail me.

In your other example - was there a valid reason, relating solely to the requirements of the job that it go to a woman and that she be 45, not 44? I can see there may be justification for the post being filled by a woman, but being that proscriptive on age is, frankly, pathetic.

 

[alan1302]

I can see there may be justification for the post being filled by a woman,

On what grounds for a job in the hospitality industry?

 

[Newchodge]

On what grounds for a job in the hospitality industry?

I didn't bother reading some of the rant, and I missed this is for a member of bar staff. There may be justifications for people of a specific gender or ethnic appearance, even in the hospitality industry, but it is for the employer to justify the requirement. For example a Chinese restaurant is entitled to seek to ensure a degree of 'authenticity' by requiring a proportion of the front end staff be of Chinese appearance.

 

[Mr D]

Several years back there was a company who had just landed a German contract so advertised for a German speaker to join their workforce.
The jobcentre had a problem with that as it discriminated against non German speakers.

Seriously the only times I've seen age restriction on a job has been where its a requirement of the funding. For example young person age 25 or under - the funding being for an under 26 year old in post. Pretty rare even then.