Receipt of scores of complaints about discriminatory adverts has prompted the Equality and Human Rights Commission (“EHRC”) to publish a series of short guides for publishers (who produce or display adverts) and advertisers (who target potential employees and customers using a form of media) to help them comply with equality legislation. These guides provide useful advice for employers on how to avoid breaching the Equality Act 2010 (“the Act”) when advertising jobs, as well as tips for those advertising goods, services and facilities.
As the new guidance makes clear, broadly speaking job opportunities should be available to everyone regardless of any “protected characteristics” (such as sex, race, disability, gender reassignment, pregnancy and maternity, marriage and civil partnership, religion or belief, sexual orientation and age). Employers should therefore take care when advertising roles to ensure that vacancies are not restricted to any particular group, either by the way a role is described, or how the advert is formatted.
Some key take-home tips for employers from the various guidance documents include:
- Think carefully about any job descriptions or photographs you attach to job adverts to ensure these don’t imply that only a certain type of candidate will be considered for the role. Use neutral images, for example, if advertising a teaching role choose a picture of a school or a group of male and female teachers (rather than teachers of just one sex).
- Include a prominent equal opportunity statement making clear that applications are welcome from anyone with suitable qualifications or experience.
- Think about where you’re advertising a role. Generally the wider the scope of the audience, the lower the risk you will breach the Act.
- If an “occupational requirement” applies (see further below), clearly state the reason in the advert. For example an advert for a care assistant for female service users might state “due to the provision of intimate care, this vacancy is restricted to women only”.
- Avoid requiring applicants to have any specific physical characteristics, unless they are a real requirement of the job that is proportionate to achieve a legitimate aim. For example, requiring applicants to be of a particular height is unlikely to be lawful, as this may disproportionally exclude women and disabled people.
- Don’t include age requirements unless these can be objectively justified. Instead describe the required competencies or experience. Refer to “graduate” or “entry level”, rather than “young”, “mature”, “recent graduate” or “junior”.
- Don’t include driving licence requirements unless driving is a genuine requirement for the role (as this may disproportionally exclude disabled people). If the role genuinely requires driving (such as a travelling sales job) consider requiring drivers to take an annual medical check as a condition of employment irrespective of how old they are.
- Don’t include religious requirements unless they are a genuine occupational requirement and can be objectively justified (for example don’t require a secretary for a Jewish school to be Jewish, because observing a faith is unlikely to be needed to perform the role).
- Avoid job titles that imply a job can be done by men or women only. For example use “maintenance worker” or “waiting staff” rather “handy man” or “waitress”.
“Occupational requirements” and “positive action”
Employers can only require job applicants to have a particular protected characteristic in very limited circumstances. This might be where having that protected characteristic is necessary for the specific role (is an “occupational requirement”, for example it may be lawful for an advert for a public changing room attendant to require candidates of the same sex as those using the facilities for reasons of privacy and decency), or if one of the specific exceptions in the Act applies. If an employer asserts that an “occupational requirement” applies, that requirement must still be objectively justifiable.
The Act also makes provision for employers to take “positive action” where individuals who share a protected characteristic suffer a disadvantage or are underrepresented. Again though, any such action must be proportionate.
What if you need candidates to be proficient in a particular language?
Our clients often ask whether it is discriminatory to require candidates to be skilled in a particular language. While it is not discriminatory to require this if language skills are genuine requirement for the role, the EHRC guidance recommends that it is good practice to advertise in English, as well as the required language that is preferred.
For example, an advert for a sales person who will have to deal with Italian buyers may state a requirement for applicants to speak Italian, but it is good practice for the job to be advertised in English or, if preferred, in both English and Italian so that all potential applicants are aware of the requirement. That said, advertising for construction workers in Polish only is likely to exclude non Polish speakers from applying. This is because the ability to speak Polish is unlikely to be a genuine requirement for the job so the advert would be unlawfully discriminatory.
As well as being unlawful to commit a discriminatory act, it is unlawful to instruct someone to either carry out or help another person to commit a discriminatory act. Employers should therefore give careful thought to the instructions they provide to employment agencies when looking to advertise a job role to avoid publication of a discriminatory advert.
Both publishers and advertisers can fall foul of equality legislation if insufficient care is taken to consider how a job is advertised, which can lead to costly claims for employers. In particular, employers can be exposed to claims for direct and indirect discrimination, for which the potential compensation that can be awarded by an employment tribunal is uncapped.