Discrimination in Recruitment: How to Avoid Discriminatory Advertisements
Thursday 4th October | News
by Louisa Gardner
It is important that employers are mindful of their obligation to carry out a recruitment and selection process that is non-discriminatory in nature. Employers should therefore allocate sufficient time and care when publishing job advertisements so as not to be caught out – there is no cap on damages awarded at the Employment Tribunal for a successful discrimination claim so any mistake could prove very costly.
As a starting point, a job advertisement must not discriminate on the basis of any of the nine protected characteristics as defined under the Equality Act 2010, which as a refresher are:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
- race including colour, nationality, ethnic or national origin
With a bit of common sense and careful consideration a job advertisement should be relatively simple to draft, however there are a few pitfalls that employers should avoid:
Avoid being gender specific
Gender-specific descriptors should be avoided and these are unfortunately relatively common. Terms like ‘barwoman’, ‘salesman’ and ‘waitress’ are all discriminatory because they specify the gender of the successful job applicant. This is precisely the reason why a Slug and Lettuce franchise based in Bristol has come under fire recently, as reported by the BBC. A sexist job advertisement was posted on the private social media page of a female chef who works at the venue, stating ‘Boys first, if possible’ within the job description. The post has since gone viral and the chain has been quick to issue a formal apology, reassuring all future applicants that the views expressed are not those of the company and that the employee in question would receive suitable training in the area. To avoid a gender blunder, employers should ensure that all job titles and descriptions are gender neutral. If the employer is able to show however that it is genuinely necessary for the job to be carried out by a person of a specific gender, the discrimination will not be unlawful. A suitable example may be requiring an applicant to be female for a role in a single sex institution such as a hospital ward or prison in order to preserve decency or privacy of patients and inmates. In the above news article however the chef responsible for posting the advert online said she included the wording as the role involved ‘heavy lifting’. She stated that herself and her co-worker (who was also female) would struggle to cope with the heavy lifting without the assistance of a male employee as it often involved lifting a 20 litre vat of oil daily. In this case, the author has assumed that a female member of staff would not be able to carry out the heavy lifting required, but this assumption is not based on any form of objective test and as such amounts to direct sex discrimination against prospective female applicants.
Avoid age restrictions
This is another common issue, and with more over 65’s in work than ever before it is definitely one for employers to watch out for. Adverts containing phrases like ‘young, dynamic, graduate required’; ‘bright young thing’ or ‘mature’ are all dangerous as they effectively restrict the age group of suitable applicants. Employers should also take care to not mention how many years continuous work experience in the sector is required where there is not a legitimate reason for doing so. As with gender, and all other discriminatory grounds, if it can be shown that there is a legitimate business reason for the age restriction, the discrimination will not be unlawful under the Equality Act 2010. In this case a suitable example of where an employer would be able to safely specify an age requirement would be in restricting applicants for a role working in a bottle shop to those who are over 18.
Be wary of indirect discrimination
Indirect discrimination becomes an issue when employers use selection criteria for a job role which mean that it is effectively impossible for individuals with a certain protected characteristic to apply. An example of indirect discrimination in practice could be if a job role was only advertised in a publication linked to a specific religion – therefore indirectly discriminating against those with a different or no religion as they would not likely have had sight of the advertisement and been able to apply. Another example would be if the job description specified that the successful applicant must be a native English speaker, thus discriminating against those who may be bilingual and born overseas. By indirectly excluding such individuals (even when it has not been expressly stated that they cannot apply) an employer is excluding them from the recruitment process which is a discriminatory act. If an employer therefore does not have a genuine occupational requirement for the exclusion, they leave themselves open to a possible discrimination claim.
The main take away advice to employers is that every advertisement should be carefully considered prior to publishing, and anything that may give rise to a potential claim should be rephrased. Employers should consider who, within their organisation has the authority to publish advertisements and all should be pre-approved by a senior member of staff. A suitable advertisement must only specify the information that is actually relevant to the role and this must be backed up by legitimate reasoning. The Equality and Human Rights Commission (“EHRC”) has received so many complaints in relation to discriminatory job advertisements that they have now published a useful guide for anyone who produces or displays job adverts to ensure they meet their obligations under the Equality Act 2010. ACAS run practical training courses on Equality, Diversity and Recruitment and as always our Employment team is available to assist with any concerns you may have with your recruitment material.