Could my company be at risk of indirect discrimination if...?

June 1, 2017 Nicola Inge

Gavel image automatically excludes people with criminal convictions?

This is the question we asked law firm Freshfields Bruckhaus Deringer LLP to explore, in light of the disproportionate representation of BAME groups throughout the criminal justice system.

Their answer, in short, was yes – there are “no substantive legal obstacles (intrinsic in the legislation) to BAME job applicants bringing claims of indirect discrimination under section 19 of the Equality Act 2010.”

Racial inequality in the criminal justice system

  • BAME groups are arrested, convicted and sentenced at rates disproportionate to their share of the general population
  • Black men are three times more likely to be arrested as white men
  • 25% of the prison population is BAME in comparison to 13% of the UK population

Read our factsheet on Race Inequality in the Criminal Justice system

This doesn’t mean that employers are likely to be sued tomorrow – any potential claimant would need to provide substantial evidence to support their case, as Freshfields explained in our most recent Ban the Box webinar.

Nor does it mean that employers are completely barred from considering criminal records – indeed, in some professions there’s a legal requirement to do so.  But it does suggest that employers need to develop a policy for assessing convictions fairly to make sure they’re not illegally excluding BAME groups through poorly thought out recruitment practices.

A simple change can help

Ban the Box can help employers to make a more informed hiring decision based on the actual risk or relevance of the conviction(s) to the role in question. Removing the criminal records tick box from job applications enables the job seeker to be assessed on merit, before any criminal convictions are taken into account.

78 employers, with a collective workforce of over 710,000, have already banned the box. Whilst they come from all sectors and sizes - from Boots to Carillion, the Southbank Centre to Virgin Trains  - they all share a commitment to providing fair opportunities for people with convictions.

If you consider yourself a fair and inclusive employer, why not join the movement and sign up now?





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