What the Equality Act 2010 means for your recruitment

The Equality Act 2010 doesn’t just apply once someone is employed. Acas is explicit that the law protects anyone who works for an employer, contractors and self-employed people hired to personally do the work, job applicants, and former workers — meaning obligations start the moment a role is advertised, not once someone is hired.

The nine protected characteristics

Recruitment decisions must not be influenced, directly or indirectly, by any of the characteristics protected under the Act: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

What you can and can’t ask about health or disability

This is one of the most commonly misunderstood parts of the Act. The legislation’s own explanatory notes set out the position clearly: an employer would not be permitted to ask an applicant health questions until they have offered the candidate a job, other than to establish whether a reasonable adjustment is needed for the recruitment process itself, or to check whether the applicant can undertake a function that is intrinsic to the job.

Acas confirms the same principle from the employer’s practical obligation: employers must make reasonable adjustments for job applicants or interviewees if they are disabled, and this can be relevant at any stage of the recruitment process, such as providing an application form in a different format.

Positive action versus positive discrimination

This is the distinction that causes the most confusion, and getting it wrong carries real legal risk. Section 159 of the Act permits positive action only in a specific, narrow circumstance. Per the Act’s own explanatory notes, an employer may take a protected characteristic into consideration when deciding whom to recruit, where people with that characteristic are at a disadvantage or under-represented, but only where the candidates are as qualified as each other, and the employer must not have a policy of automatically treating anyone with a protected characteristic more favourably.

In practice, this means positive action can only ever act as a genuine tie-breaker between two equally qualified candidates, not a quota, a reserved shortlist, or a policy of automatic preference. Anything beyond that tips into unlawful positive discrimination, which is exactly why widening reach through our Diversity & Inclusion Recruitment approach has to be built on genuinely lawful foundations, not shortcuts.

What this means for job adverts and the wider process

Taken together, the practical requirements for a compliant recruitment process are:

1. Ensure job adverts don’t directly or indirectly exclude candidates based on any protected characteristic
2. Remove any health or disability questions from application forms, except where needed to arrange a reasonable adjustment or assess a core, intrinsic job function
3. Build in reasonable adjustments as standard practice, not as an exception handled case by case
4. If using positive action, ensure it only ever applies as a tie-breaker between equally qualified candidates, never as an automatic preference or quota
5. Keep records showing recruitment decisions were made on merit and role-relevant criteria, not protected characteristics

Getting this right across the whole process, from advertising to interview to offer, is exactly the kind of compliance-aware practical audit we build into our Recruitment Outsourcing / RPO service, as well as our Diversity & Inclusion Recruitment approach.