Leading regional law firm, Howes Percival is warning employers that it is unlawful to discriminate against a prospective employee on the grounds of sex or pregnancy and that asking questions about whether or not a prospective employee is pregnant or whether they plan to have children is likely to amount to discrimination or give rise to an inference of discrimination if they are then treated unfavourably as a result.
The warning comes as a new report by the Equality and Human Rights Commission (EHRC) reveals that a significant number of employers think that it is okay to ask female candidates about pregnancy and their plans to have children.
According to the EHRC’s report* 59% of private-sector employers wrongly believe that during the recruitment process a woman should have to disclose whether she is pregnant. Over a third (36%) of the senior decision makers interviewed thought it acceptable to ask women about their plans to have children before deciding whether to give them a job, while 46% agreed that it is reasonable to ask female candidates if they have children.
Commenting on the report’s findings, employment law expert and partner at Howes Percival, Paula Bailey, said,
“In the UK, it’s unlawful to discriminate against a job candidate on the basis of sex or pregnancy. However, I think it is correct to say that some employers still have the misconception that if a woman is pregnant, she has to disclose that to the employer during the recruitment process and that if they do not, this can enable them to take steps to terminate their employment.
“Obviously, a woman is under no obligation to tell a prospective employer that she’s pregnant during the recruitment stage, and the employer shouldn’t ask whether she is at interview. It’s also unacceptable to ask a woman about her plans to have children. If a female candidate doesn’t get a job because she says she is planning to have a family, the inference is that the employer has committed an act of sex discrimination. Similarly, any dismissal of a pregnant employee because of their pregnancy would be automatically unfair and amount to discrimination.”
Paula Bailey concluded,
“In many sectors there’s a shortage of talent and women of childbearing age have significant skills to offer. It’s extremely short sighted for employers to take a negative view of pregnancy or employing women who may have plans to have children.”
Questions employers must not ask during the recruitment process:
1. Marital status: Employers should not ask applicants about ‘protected characteristics’, this includes details of whether they are married, single or in a civil partnership.
2. Age: Employers can only ask for a candidates’ date of birth on an application form if they must be a certain age to do the job, e.g. selling alcohol, or it is otherwise objectively justified.
3. Children: It is unlawful to discriminate against someone if they are pregnant or to discriminate against women because you believe that they may become pregnant in the future. Therefore, employers should not ask female candidates whether they are pregnant or plan to have children.
4. Questions about race, religion or belief, sexual orientation, gender reassignment or any other protected characteristic, as if the prospective candidate doesn’t then get the role, it could give rise to an inference of discrimination.
5. Health or disability: Employers can only ask about health or disability prior to making an offer if it is necessary to establish whether there is a duty to make reasonable adjustments to enable them to undergo an assessment in relation to the role, to establish whether they are able to carry out a function that is intrinsic to the role or for the purposes of monitoring diversity;
6. Spent criminal convictions: Applicants are not required to tell a prospective employer about spent criminal convictions unless they are in roles that are exempt from this rule e.g. schools.
7. Trade union membership: Employers must not use membership of a trade union as a factor in deciding whether to employ someone.