Last reviewed: 5 October 2026. This guide is general information, not legal advice. The Equality Act 2010 applies in Great Britain (England, Wales and Scotland); Northern Ireland has separate equality legislation.
TL;DR
- The Equality Act 2010 protects nine characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (s. 4).
- Recruitment agencies are directly covered as employment service-providers (s. 55), and a client cannot lawfully instruct you to discriminate (s. 111).
- No health questions before an offer, or before a candidate is put into a pool, except in specific cases (s. 60).
- Positive action is lawful; positive discrimination is not (GOV.UK).
- Employers with 250 or more employees report their gender pay gap every year. Action plans are voluntary for now and, subject to legislation, mandatory from spring 2027.
Who the Act covers in a recruitment process
The Act protects job applicants, not only employees. An employer must not discriminate in the arrangements it makes for deciding who to offer employment to, the terms of an offer, or by not offering employment (s. 39).
Agencies are covered in their own right. Under section 55, an employment service-provider "must not discriminate against a person" in the arrangements it makes for selecting the people it provides its services to, or in the terms on which it does so. And section 111 makes it unlawful to instruct, cause or induce another person to discriminate. In practice: if a client asks for "no one over 40" or "a man for this role", the request is unlawful, and following it exposes the agency too.
The nine protected characteristics
Section 4 lists them:
| Characteristic | Examples of practices that create a risk |
|---|---|
| Age | Adverts for "recent graduates" or "digital natives", or a maximum years of experience |
| Disability | Health questions before an offer; inflexible assessments with no adjustments |
| Gender reassignment | Questions about gender history or previous names that the job does not need |
| Marriage and civil partnership | Questions about family plans or a partner's job |
| Pregnancy and maternity | Rejecting or delaying a candidate because of pregnancy or planned leave |
| Race | Requiring "native English" when the job needs fluent English |
| Religion or belief | Interview dates or dress requirements that exclude without justification |
| Sex | Gendered job titles or language; shortlists filtered by sex |
| Sexual orientation | Personal questions in screening calls |
The examples in the right-hand column illustrate common risks; whether a given practice is unlawful depends on the facts. The Act prohibits direct discrimination (s. 13), indirect discrimination, where a neutral rule puts a group at a disadvantage without justification (s. 19), harassment (s. 26) and victimisation (s. 27). For disabled candidates, the duty to make reasonable adjustments (s. 20) applies to the recruitment process itself, from the application format to the interview.
Writing fair job adverts
A job advert is part of the "arrangements" for deciding who gets an offer. Four rules of thumb:
- Describe the job, not the person. List the skills, qualifications and experience the role needs. Every criterion should be one you can justify by the work.
- Watch proxies. Years-of-experience caps, "young and dynamic team", "native speaker" or "must be able-bodied" can all point to a protected characteristic.
- Use the occupational requirement exception sparingly. Requiring a protected characteristic is allowed only if, given the nature or context of the work, it is an occupational requirement and a proportionate means of achieving a legitimate aim (Schedule 9, paragraph 1). It is rare, and the employer has to show it.
- Offer adjustments. Say how candidates can ask for adjustments to the application or interview process.
Health and disability questions before an offer (section 60)
Section 60 says a person to whom an application for work is made "must not ask about the health of the applicant" before offering work or, "where A is not in a position to offer work", before including the applicant in a pool of candidates from whom a person will be selected. The second limb is written for intermediaries: an agency should not ask health questions before shortlisting a candidate for a client.
Questions are allowed when they are necessary to:
- find out whether the candidate can take part in an assessment, or needs adjustments for it;
- establish whether the candidate can carry out a function that is intrinsic to the job, taking into account any reasonable adjustments;
- monitor diversity among applicants;
- take positive action for disabled people;
- check that the candidate has a particular disability where the job genuinely requires it.
A breach of section 60 itself is enforced by the Equality and Human Rights Commission. But if a candidate is rejected after answering a health question, that conduct can be challenged as disability discrimination, and the question helps shift the burden of proof to the employer.
Keep diversity monitoring forms separate from the application that the hiring manager sees.
Positive action is lawful; positive discrimination is not
The government's guidance draws the line clearly: "Positive action is not positive discrimination. Positive discrimination is unlawful in Great Britain" (GOV.UK, positive action in the workplace).
General positive action (s. 158) allows proportionate measures when you reasonably think a group sharing a protected characteristic suffers a disadvantage, has different needs or is under-represented: targeted adverts, outreach at specific job fairs, mentoring, or training for that group.
The tie-break (s. 159) allows you to prefer a candidate because of a protected characteristic when deciding between candidates, only if:
- the candidate is as qualified as the other;
- you do not have a policy of treating that group more favourably in recruitment;
- the action is a proportionate means of overcoming the disadvantage or low participation.
What crosses the line: quotas, interviewing a set number of candidates from a group regardless of merit, or preferring a less qualified candidate. The guidance distinguishes targets, which are not mandatory and can be lawful, from quotas. It cites a tribunal case in which a police force treated every candidate who passed its tests as equally qualified and then prioritised ethnic minority candidates: the tribunal found direct discrimination. The guidance also notes that treating a disabled person more favourably than a non-disabled person is not unlawful.
Building fair shortlists
- Agree criteria before you search, from the job description, and score every candidate against the same criteria.
- Record why each candidate was or was not put forward, in terms of the criteria. That record is your evidence if a decision is challenged.
- Refuse discriminatory instructions from clients in writing, and keep the exchange.
- Consider anonymised CVs for the first review, to keep names, photos and dates of birth out of early decisions.
- Use targets, not quotas, if a client wants a more diverse shortlist, and reach them by widening the search, not by lowering the bar.
Gender pay gap reporting: 250 employees
Any employer with 250 or more employees on its snapshot date must report its gender pay gap within a year (GOV.UK, who needs to report):
| Employer type | Snapshot date | Reporting deadline |
|---|---|---|
| Most public authority employers | 31 March | 30 March |
| Private, voluntary and other public authorities | 5 April | 4 April |
Source: GOV.UK, when to report. Public authorities in Scotland and Wales have different rules.
Two points for agencies. The headcount counts individuals, not full-time equivalents. And the guidance says not to include agency workers in a client's headcount, "because they are part of the headcount of the agency that provides them". An employment business that employs its temps can therefore reach 250 sooner than its office headcount suggests.
Action plans. Employers with 250 or more employees can publish a voluntary action plan alongside their data, choosing at least two actions: one that addresses the gender pay gap and one that supports employees experiencing menopause (step 2). The government says that, "Subject to legislation, these will become mandatory from spring 2027" (GOV.UK, creating an action plan). Its Employment Rights Act timeline lists the voluntary phase from 6 April 2026 and the mandatory phase for 2027. Until then, publishing a plan is optional.
Where Marvin fits
Fair recruitment is a process, and a process needs a record. In Marvin, each job in Desk carries its description and the candidates in its pipeline, with your notes at each stage. When you present candidates to a client, you can send their documents in an anonymous mode, and choose what it hides. Jobs published on your Career site can hide the client's name for confidential searches. To see how these fit a contract desk too, read contract and temp recruitment software and our guide to UK GDPR when recruitment agencies use AI.
Marvin does not run diversity monitoring surveys, calculate gender pay gaps or decide whether a requirement is lawful. Those stay with your HR team and advisers.
Want to see how shortlists and client presentations work in Marvin? Book a demo.
Frequently asked questions
What are the nine protected characteristics?
Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation, listed in section 4 of the Equality Act 2010.
Does the Equality Act apply to recruitment agencies?
Yes. Section 55 prohibits discrimination by employment service-providers, which include agencies, in how they select people and provide their services. An agency that follows a client's discriminatory instruction can also be liable, and section 111 makes it unlawful to instruct or induce someone to discriminate.
Can you ask a candidate about their health before an offer?
Generally not. Section 60 prohibits health questions before offering work or, where you cannot offer work yourself, before including the person in a pool of candidates, which is how agencies work. Exceptions include questions needed to arrange adjustments for an assessment, to check a function intrinsic to the job, or to monitor diversity.
What is the difference between positive action and positive discrimination?
Positive action is lawful: targeted measures such as encouraging applications from an under-represented group, or choosing between two equally qualified candidates on the basis of a protected characteristic, without a blanket policy. Positive discrimination, such as quotas or preferring a less qualified candidate, is unlawful in Great Britain.
Who must report the gender pay gap?
Any employer with 250 or more employees on its snapshot date (5 April for private and voluntary employers, 31 March for most public authorities) must report within a year. Agency workers count in the headcount of the agency that supplies them, not the client's.
