The BBC reported this month on a London-based talent agency, Matching Models, who thought it entirely appropriate to advertise for a PA with this particular attribute. And that’s not all. In addition to bra-size, their ideal candidate was also required to have ‘a classic look’ and ‘long brown hair’.
The home page of Matching Models’ website, entitled ‘THE EMPLOYMENT AGENCY FOR BEAUTIFUL AND TALENTED PEOPLE’ (their emphasis) states that, ‘…it is almost politically incorrect to request someone to work for you that is both attractive as well as professionally equipped with the right set of skills…because after all, first impressions count!’
Is this boring old political correctness interfering with an employer’s freedom to recruit pretty, moderately-busty women yet again? Or for ‘almost politically incorrect’ should we in fact be reading ‘potentially unlawful’?
Job applicants are protected from discrimination under the Equality Act 2010 on the grounds of nine different protected characteristics (including sex, race and disability). An employer must not discriminate in its arrangements for advertising jobs, or through the actual content of the job advertisement. It is also unlawful for an employer to instruct a recruitment agency to supply candidates only from a particular group, or to cause or induce that agency to discriminate.
There are only very limited circumstances under the Act where employers can target particular groups in their adverts. If a particular group is targeted, it needs to be because of the genuine (as opposed to perceived) requirements of the job, or because the employer can demonstrate an objective justification for doing so.
So, if the advert suggests that the employer will be using discriminatory criteria in their selection process, or that reasonable adjustments won’t be made for disabled candidates, a job seeker who suffers a disadvantage (for instance from being prevented or deterred from applying for a role) can use the advert as evidence in support of their employment tribunal claim. In addition to claims from individual aggrieved applicants, an employer could also face an investigation and/or direct enforcement action by the EHRC in the form of an injunction.
It follows that employers need to be mindful of the risk of discrimination claims and take particular care over the content and language of their adverts. This applies to all forms of adverts, whether those adverts are sent by internal email, posted on a staff notice board, published in the local newspaper, or displayed on the back of a bus.
A recent research report carried out by the Equality & Human Rights Commission (EHRC), revealed that there is considerable confusion among workplaces and recruitment professionals about their legal obligations in relation to recruitment. Many of the findings are quite troubling. For instance, 28% of recruitment agents incorrectly believed that employers are allowed to advertise for people with English as their first language (in fact, it is lawful to request English language skills, but not English as a mother tongue).
The EHRC report concludes that workplaces and recruitment agencies should increase their understanding about the law in relation to recruitment so that they are not at risk of discriminating against candidates. So, for those involved in recruitment, training in this area of employment law is essential.