Is this small family business breaching equal opportunity legislation by employing family members automatically? Matthew Whelan and Ester Smith advise.

The question:

A small family business (circa 8 staff) employs predominantly family members. The business’s objective is primarily to provide jobs/earning capability for family. Business does employ non family members and does not discriminate in their recruitment. Family members automatically join the business, but do not displace non family.

How does this sit with equal opportunities legislation?
 

Legal advice:

Matthew Whelan, solicitor, Speechly Bircham
 

Your question, I am afraid, is one which it is difficult to answer in abstract or with any certainty.

On the face of it, giving priority to family members does not give rise to differential treatment which neatly falls into one of the protected categories under our current discrimination legislation. This means there is no obvious recourse for someone who may be unhappy about this (although you do need to look at the underlying reason for that treatment to ascertain this is the case).

This policy could, however, give rise to discrimination risks. If, for example, the family is predominately of one racial group, any detrimental treatment towards non-family members (in respect of recruitment or otherwise) may give rise to race discrimination.

It is best to take legal advice on this as the question of discrimination can very much depend on the situation in hand.

More generally, a limited recruitment policy could be considered to be bad practice in respect of equal opportunities as it limits the access to opportunities to a narrow group of people.  This can be a particular issue for public sector entities.

Matthew Whelan can be contacted at matthew.whelan@speechlys.com. For further information, please visit www.speechlys.com.

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Esther Smith, partner, Thomas Eggar