The Equalities and Human Rights Commission (EHRC) have released new guidance on avoiding discriminatory advertising. This can be accessed here:-
Although, most employers will be aware that they must carefully consider the terms of a job advertisement to ensure that they are not breaching the Equality Act 2010, the EHRC have warned that thousands are potentially at risk of being denied jobs due to discriminatory advertising. The Equality Act 2010 prohibits discrimination in recruitment and advertising as part of the recruitment process. An advert is discriminatory when it restricts employment to a particular group with a protected characteristic. As a reminder the protected characteristics for the purposes of recruitment are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation. According to the ECHR, the most common types of discriminatory complaints relate to adverts which discriminate against older employees or discriminate due to sex.
The guidance and FAQs act as a reminder about the key issues. Cases involving allegations of this nature do crop up from time to time. In fact, I recently noticed a job advertisement in the window of a sandwich shop seeking "young, female assistants". Was being young and female a genuine occupational requirement? Do young women make better sandwiches? This probably didn't result in an Employment Tribunal claim being raised but there would have been grounds for a complaint by a disgruntled man or older woman (as long as they were genuinely interested in the job).
The EHRC guidance is aimed at employers, advertisers publishers and goods, facilities and service providers.
There is therefore potential liability on a few parties depending on the way in which a discriminatory job advertisement is formulated and advertised. Using my example of the sandwich shop above, the liability would rest with the employer alone as they formulated the advert and placed it in their own shop window.
The guidance provides that both the employer (and advertiser if they used an intermediary) and publisher are liable if a discriminatory advertisement is published. The publisher of the advert would not be responsible for the content of the particular advertisement but they would be legally responsible for its circulation. The caveat to this is if the publisher can show that it relied on a statement from the advertiser or employer that the publication of a particular advert would not be unlawful, and that it was reasonable for them to rely on that statement.
The guidance provides useful examples of where advertisements stray into discriminatory territory, for example, "A recruitment agency publishes a job advert for another company on its website which states that applicants over 45 need not apply. This is age discrimination which, unless it can be objectively justified, is unlawful. The recruitment agency would be liable as the advertiser and publisher."
To meet the test of objective justification, an employer would have to show that there was a legitimate aim they were trying to achieve by limiting applications to those under 45 and that applying this limitation was a proportionate way of meeting that particular aim.
There will, of course, be occasions when there is a real need for someone with a particular characteristic, such as being male or female or having a particular religion etc to fulfil the post This is referred to as an occupational requirement. However, in order to defeat any claim of discrimination, the characteristic must be crucial to the particular role rather than just one of the factors required. Again, it has be objectively justified. In this type of case, the guidance suggest that the advertiser provides the publisher with a written statement setting out the basis on which they are specifying a particular characteristic and I would recommend this as best practice as it will ensure that employers think seriously about what they are seeking and whether they could justify this requirement it if it was challenged.
The guidance is well worth a read as a reminder of the issues that can arise in this area.