Please note, this is not intended to be a full summary of the law, and advice should be sought on individual situations.
Whilst there is clearly a benefit to a church or other Christian organisation in employing staff with minimum fuss and expense, there are also risks. Employers are subject to various anti-discrimination laws. These laws afford protection from discrimination on the grounds of their:
- Age
- Sex
- Race or ethnic origin
- Sexual orientation
- Religion or belief
- Disability
- Marital status
- Gender reassignment
- Maternity/Pregnancy
Unlawful discrimination can be direct or indirect. Indirect discrimination basically arises when an employer imposes circumstances which individuals with a protected characteristic are less able to comply with – and this causes them a detriment, for example access to a job, training or a promotion.
We outline below some scenarios where indirect discrimination could potentially occur.
Word of mouth recruitment
If a Christian organisation whose staff comprises entirely of white men conducts an informal recruitment drive through its staff and takes no other steps, it may be less likely that women or ethnic minorities would come to hear about the vacancy. The condition of being recommended internally could be indirectly discriminatory as it perpetuates the make-up of the existing workforce.
For example in one case, recruitment for the job of Fire Control Operator was usually done via a list of fireman’s wives available to fill the vacancies. No men had ever been employed in this position. A male complainant was found to have been discriminated against.
Recruitment from existing workforce
Some positions may be open only to internal candidates or to internal candidates meeting certain criteria e.g. being of a particular grade or having particular experience or length of service.
Where the workforce is dominated by members of, for example, one sex, restricting applications to internal candidates could be indirect discrimination. But it will not be unlawful if it can be objectively justified, for example on cost grounds relating to providing an internal career structure.
Recruitment from friends and acquaintances
Similar to the above, another example could be recruitment by a Church for staff amongst existing Church members. Although potentially indirectly discriminatory, there is the potential defence of objective justification. For example, the Church may argue that attendance at the Church or knowledge of the Church is required to fulfil the duties. As an individual from outside could still apply and claim discrimination if unsuccessful, it may be preferable to be transparent about the objective justification being relied upon.
The Court of Appeal has held that there was no discrimination where a requirement for the position was that only persons known to the recruiter could be considered. This was a decision that many lawyers have found difficult to reconcile with other case law, but nevertheless it is authority that making an appointment from within a circle of family, friends and personal acquaintances is unlikely to constitute indirect discrimination. This argument does not extend to all informal methods identified above.
Advertisements
Save where objectively justifiable (for example because the role has an Occupational Requirement for a Christian and your church membership is diverse), in order to avoid potential unlawful indirect discrimination vacancies should be advertised externally as well as internally and should not be filled without a formal advertisement. Some thought needs to be given to where to advertise. For example, placing an advertisement in a publication read mainly by Christians where there is no Occupational Requirement for a Christian could be indirect discrimination against those of other faiths. One of the simplest ways of advertising externally is the government website.
Employers who do not advertise must take the risk of a claim on board. That said, if someone is unaware of a vacancy, then this is a considerable obstacle to showing that they have been discriminated against.
Indeed, the more widely you advertise, generally the greater the risk of someone arguing that the process is discriminatory, as more people will be aware of the role, although you may be in a better position to defend a claim. Widely advertising a process that is not sufficiently robust and would be discriminatory, for example because you will only consider a Christian even though there is no Occupational Requirement for a Christian, would increase the risk of a claim that you would not be able to defend.
Conclusion
There is a benefit to an employer in targeting the scope of any recruitment drive so that they get the best candidate. This is irrespective of any benefit arising from diversifying the workforce.
There is some authority that recruitment within a small personal group of friends and family will not be discriminatory, but a distinction has been drawn between this and recruitment by word of mouth, which can be and has in the past been held as being unlawfully discriminatory. The very informality of the process means that documents that could help protect a company from a claim are unlikely to exist.
Compensation for unlawful discrimination is unlimited.
This information has been provided by solicitors working for Edward Connor Solicitors. It is designed for the purpose of knowledge sharing only and does not constitute legal advice.
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