When you fill out that application form, or write that covering letter for your CV, you do so in the belief that your application will be considered fairly and on its merits. Mostly that will be the case. Occasionally however, & sometimes unwittingly, employers do discriminate in their recruitment process. What can you do if you feel you are being discriminated against?

In the seventies, the Sex Discrimination Act and the Race Relations Act made it unlawful with a few exceptions to treat a job applicant less favourably by reason of their gender or the racial or national origin. In mid nineties the Disability Discrimination Act not only extended statutory protection from discrimination to disabled job applicants, but put employers under a duty to make ‘reasonable adjustments’ to facilitate the disabled applicant in that position. In December 1993 new regulations came into effect outlawing discrimination on the grounds of sexual orientation, religion or religious belief. However age discrimination won’t be outlawed till late 2006.

Discrimination in the recruitment process is seldom overt and the employer is unlikely to admit even to himself, let alone to you, that any form of discrimination influenced the decision either in selecting you for interview or at the interview itself. If you phone up and ask why you were not interviewed or offered the job, you will generally receive a polite, bland response which adds little to your understanding.

One imaginative applicant got round this problem by submitting two job applications, identical but for the fact that one gave his real Indian name, and one gave an Anglo-Saxon pseudonym. When he failed to get an invitation to interview, but his Anglo-Saxon alter ego did, he had clear evidence of discrimination in the selection process. Entrapment may be frowned upon by Tribunals and certainly won’t endear you to employers, but what else can you do?

Before making the application, you should find out about the employers’ equal opportunities policy and could even mention it in your application as being one of the reasons that drew you to them in the first place.

If you have been rejected one approach is to issue a statutory discrimination questionnaire in which you set out why you feel you may have been discriminated against, and ask for a reply in order to find out whether you have grounds to bring a discrimination claim. This can be a useful tool if you use it to ask a series of searching questions about the recruitment process, possibly including statistical data on the composition of the workforce, as well as to seek disclosure of documents relating to the interview process such as interview notes. Employers are not obliged to reply, but Tribunals may draw adverse inferences from partial or equivocal responses.

You may alternatively make a request under the Data Protection Act to gain access to data held about you on a filing system, though this is a less effective technique than a discrimination questionnaire.

Another, less legalistic approach would be to simply write to the employer, state that you feel that you do not feel that you have been treated fairly in the selection process, and ask for a meeting to discuss it. Responsible employers should take a request for a meeting seriously. If you feel you are being fobbed off, you could then issue the discrimination questionnaire.

If you have a medical condition that may affect you in the selection process, it’s worth bearing in mind that the definition of ‘disability’ under the Disability Discrimination Act can cover a wide variety of conditions (including back ache) if the condition is ongoing & causes a substantial affect on your ability to carry out normal day to day activities. In your job application, you may wish to set out what reasonable adjustments you think would enable you to perform the role. Sometimes government grants are available to fund those adjustments. The more helpful information you offer on your condition upfront, the greater the onus is on the employer to think through the issues you have raised.

For women, questions about whether you have or are thinking about starting a family at the interview are definitely a no-no as they strongly suggest sex discrimination in the interview process and you would be wise not to raise the subject yourself.

If you are asked for proof of your right to work within the EU, the employer is likely to only be complying with it’s legal obligations, though if they only asked ‘foreign’ applicants for proof, that could well amount to indirect discrimination.

Most people simply want to find a job and will generally chalk it up to experience if they are rejected, even if they feel that unlawful discrimination may have played a part. However polite enquiries could make the employer re-think their decision, or at least help applicants who come along later. Any Employment Tribunal claim should normally be brought no later than three months from the date of the act of discrimination complained of, but will continue to be the last resort for most people.

Further information

For further information please contact Caroline Walker, head of the Employment Department at Sprecher Grier Halberstam LLP, Solicitors.This article is based on UK law, is for general guidance only and should not be relied upon without specific legal advice.

Caroline Walker 020 7544 5625 carolinew@sghlaw.com