The Race Relations Act 1976 will be amended with effect from 22 December 2008 to make it clear that indirect race discrimination covers a 'deterred applicant'.
No action is needed on the part of employers. However, this is a reminder that it is important to ensure that recruitment processes do not operate to indirectly discriminate on the grounds of race (or indeed any other prohibited grounds). In practice this means taking time to consider any potential discriminatory impact from job adverts, job descriptions, short listing criteria and interview questions.
To succeed in a claim of indirect race discrimination, a claimant must show that a provision, criterion or practice has been applied, which applies to all persons regardless of race, but (a) it puts (or would put) persons of the claimant's race or ethnic or national origins at a particular disadvantage, (b) it puts the claimant at that disadvantage, and (c) it can't be objectively justified by the Respondent.
The Race Relations Act 1976 (Amendment) Regulations 2008 which amend the Race Relations Act 1976 make it clear that the definition of indirect race discrimination in S.1(1A) covers a 'deterred applicant' i.e. a person who is put off applying for a job due to an implication that he or she will be discriminated against. The Regulations make a small amendment to that provision to ensure that it equally occurs where the claimant would be put at the particular disadvantage (if they applied).
The amendment is not intended to cover hypothetical situations where an individual is not qualified to apply, or has no intention of applying, for the job in question. In this situation they would have significant difficulties in showing they have suffered a disadvantage.