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New guidance issued on job adverts

Last week saw the Equality and Human Rights Commission (EHRC) issue new guidance on advertisements and, in the same week, a marketing firm posted a job advert seeking dyslexic applicants, stating the firm required “people with a unique mind”. The EHRC has yet to comment on whether it views the advert as discriminatory but it serves as a timely reminder that companies should carefully consider the wording of job adverts before hitting ‘send’ and sending it off into the ether.

Job adverts have, for some time, resulted in employers being brought before the Employment Tribunal by potential job applicants for unwittingly including discriminatory language when recruiting.  Here we take a brief look at the law relating to advertising, remind you of some wording which has landed employers in hot water over the years and give you a few points to consider next time you’re recruiting.

Everyone has heard of The Equality Act, right?

All employers (we hope) know they should not discriminate in employment, be it when advertising, during the recruitment process or once an applicant becomes an employee.  Some employers can however occasionally be a little hasty when publishing an advert, especially where an urgent need to fill a vacancy arises.  By way of reminder, the Equality Act prohibits discrimination and specifies the following 9 “protected characteristics”; age, sex, race, disability, religion or belief, sexual orientation, marriage and civil partnership, gender reassignment and pregnancy and maternity.  So, any job adverts which directly or indirectly discriminates against applicants who hold one (or more) of those protected characteristics exposes an employer to a claim from someone they don’t even employ.

Direct discrimination is where you treat a person worse than someone else because of a protected characteristic.  Indirect discrimination occurs where an organisation applies a rule or practice which seems not to discriminate but does in fact put people who hold one of the protected characteristics at a disadvantage.  For example, a company which requires all its staff to work full time is potentially indirectly discriminating against women because more women than men choose to work part time.

Indirect discrimination can, potentially, be objectively justified where the discrimination is a proportionate means of achieving a legitimate aim. Indirect discrimination may also be justified where there is a genuine occupational requirement to recruit a certain type of individual.  For example, an airport may seek to recruit female security guards to undertake physical searches of females.  These exceptions to the rule should however be exercised with extreme caution.

Employers should be mindful of the fact that the majority of individuals are aware of the Equality Act and can often identify discrimination in one form or another.  In addition, more and more job applicants are becoming tuned in to what constitutes a discriminatory recruitment process so caution should be exercised at all stages of the process.

More haste, less speed (as the idiom goes)

Now for those gentle reminders errant wording we promised:

·         A Belgian company’s advert stated it did not employ ‘immigrants’ stating its clients did not like dealing with them.

·         A British company’s advert required Polish speakers to work in their factory.

·         An English Council required applicants be “in the first 5 years of their careers”.

·         A bar advertised for a “part-time shot girl”.

Those are just a few examples and one has to ponder just how much thought went into the wording of those adverts before they went out into the world.  Let’s also not forget use of words such as “young”, “school-leaver”, “mature”, “active”, “in good health”, “mobile” or specifying very specific qualifications (where they are not a requirement of the role) and recruiting people of certain nationalities can all open companies to the risk of claims.

Considerations

Fear not, you can still recruit!  Just pause for thought when drafting that initial advert and consider the following:

1.    Prepare a summary of what the job entails and write a draft advert;

2.    Re-read the advert, does any of the language hint (even if only ambiguously) towards ANY of the 9 protected characteristics?

3.    If it does, consider rewording your advert to remove the potentially discriminatory language;

4.    If you have included qualification requirements, if they are not a legal requirement and are instead a preference, state the qualifications are desirable and not essential and add the wording “or equivalent” after the qualification.  For example, advertising for someone who holds “A-level or equivalent” qualifications allows those who studied an NQV or similar qualification or those who obtained an equivalent qualification in another country the opportunity to apply;

5.    If there is discriminatory language, is this as a result of a genuine occupational requirement?;

6.    If you believe there is a genuine occupational requirement, seek advice before publishing!

The cycle of the recruitment process can be lengthy, time consuming and produce vast amounts of paperwork.  We have only touched upon a very small part of that process in brief detail to remind employers of the risks associated with the recruitment process.  If you have any queries regarding keeping your recruitment process employment law compliant, or any other employment law issue, please contact SCE Solicitors on 0113 350 4030 or at hello@scesolicitors.co.uk


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

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