Evidence gathered by the Equality and Human Rights (EHRC) as a result of complaints has shown that discriminatory adverts are widespread - for example seeking a "part time shot girl" to work in a bar or an advert placed by a recruitment agency noting that over 45s need not apply.
The EHRC has concluded that thousands of people are losing out on potential job opportunities and that employers are exposing themselves to costly legal action - more as a result of confusion than an intention to discriminate.
The Equality Act 2010 (EqA) prohibits discrimination on any of the nine protected grounds, such as age, disability or gender reassignment, in the arrangements an employer makes for deciding to whom to offer employment (EqA sections 39(1)(a) and 39(3)(a)). Such ‘arrangements’ include adverts.
Employers face two potential actions if they place a discriminatory advert: a tribunal claim by an unsuccessful applicant or by a person who is genuinely deterred from applying; and/or enforcement action by the EHRC even if no one has come forward to complain.
The EHRC's good practice guidance and FAQs recommendations to avoid unlawful discrimination include:
- Advertise widely to avoid excluding qualified people.
- Avoid words implying a restriction on those who may apply such as "young" or "cameraman".
- Include an equal opportunity statement to make it clear that applications are welcome from all suitably qualified or experienced people.
- Don’t try to avoid liability for unlawful discrimination in advertising by giving an employment agency instructions to discriminate, for example to advertise for "new graduates" – claims can be brought for such instructions to discriminate.
- Instead of advertising to a restricted group, for example, for a "physically active person", consider setting out the particular tasks, skills and abilities required for the role.
- Where applications are restricted, for example to those who hold a valid driving licence, advertising employers should ensure that it is a genuine requirement of the role and that no less discriminatory restriction is appropriate.
- If there is a genuine occupational requirement for an applicant to have a particular protected characteristic - for example for a female to work in a women’s refuge, ensure this has been carefully thought through and is objectively justifiable before proceeding with the advert.
- Ensure that staff responsible for placing adverts are aware of and trained in your policies on avoiding discrimination to minimise the risk of liability for their discriminatory acts.
