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Job fairness - avoiding discrimination when advertising a role

Luke Whitmore - Law on the Web

  1. 07 March 2016
  2. Business
  3. 0 comments
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The Equality and Human Rights Commission has published guidelines on advertising, after receiving hundreds of complaints about adverts which were claimed to contain discriminatory content.

There is a particular risk if you’re running your own business – while any advert can fall foul of discrimination laws, job openings are especially heavily scrutinised and it’s easy to break equality rules by accident. So what should you watch out for if you want to stay on the right side of the law?

Know what the law says

The current laws against discrimination are set out in the Equality Act 2010. This states that people should not be treated differently due to what are known as ‘protected characteristics’. These characteristics are:

  • age
  • disability
  • gender
  • marriage or civil partnership
  • pregnancy or having a child
  • race, including their nationality, skin colour or ethnic or national origins
  • religion or other strongly-held belief
  • sexual orientation
  • undergoing, having undergone or planning to undergo gender reassignment

This means that you need to take care not to disadvantage job applicants on the basis of any of these characteristics when putting together a job advert. It might sound like a tall order to keep all those things in mind, but there are some simple rules you can follow that should help you keep things fair.

Understand the job requirements

The most basic way to avoid discrimination is to make sure your advert for the job appropriately reflects what is actually needed, known as the “genuine occupational requirements”.

For example, the fact that a job in your organisation has always been done by an older person doesn’t mean that it couldn’t be done by someone young, so stating that you need a “mature” candidate may be age discrimination.

This doesn’t mean you can’t require candidates to have a certain amount of experience or specific credentials, but you should state these expectations instead of making assumptions about the sort of person who would have them. Don’t take the approach that certain people wouldn’t want to do a specific job or won’t be qualified or competent – instead, be transparent with the job requirements and open up the position to a wider range of potential applicants.

However, be careful that your requirements really are requirements, or you could be indirectly discriminating against certain groups. You may think that saying someone must have a driving licence or their own car is a reasonable request, for example, but it could be seen as discriminatory against people who can’t drive due to a disability. If the job actually involves the use of a car then you’re doing nothing wrong, but if what you actually mean is that your office is quite out-of-the-way and you’d like them to show up for work on time, you should consider that there are other ways they can achieve that.

In some rare cases, it may be justifiable to restrict who can apply on the basis of protected characteristics, but only when it is a true requirement for the job. If you do have to exclude or restrict yourself to particular groups for a valid reason – for example, only accepting female applicants for a job at a women-only rape counselling centre – you should give a brief explanation of why in the advert so that people will know it is not discrimination.

Think about what the advert implies

It’s not just the wording of job requirements that could land you in trouble – you also need to consider other aspects of its presentation that might suggest that certain people are not welcome to apply. Try to go beyond the surface level when putting together a job advert.

Maybe the most obvious thing to think about is job titles which suggest that you are looking to exclude those with a particular protected characteristic. For example, advertising for a ‘barman’ or ‘barmaid’ would suggest a gender bias that could be avoided with the use of the word ‘bartender’. You should also take care that any description of the role or the workplace doesn’t suggest that there may be a bias against some types of people.

Where you run an advert could also be exclusionary – you can promote a job opening in the most gender-neutral way possible, but if you only put it in magazines aimed at men then this may be a discriminatory move. Presentation is just as important – if you want to include a picture depicting the job, try to avoid showing a group made up of only one gender, race, etc., particularly if your industry is infamous for being unequal on that front.

Further information

If you’d like to read the Equality and Human Rights Commission’s full publication on good practice in advertising, it can be found on their website.

We also have more guidance in our business law section on equality and discrimination.

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