The Equality and Human Rights Commission (EHRC) has updated its guidance on adverts. What does it say?
What is a discriminatory advert?
A discriminatory advert restricts jobs, goods, facilities, or services to people with particular protected characteristics, such as men or people of a particular age group. It is unlawful except in limited circumstances where the Act allows such a restriction if it can be objectively justified.
Any part of an advert could be discriminatory. For example, descriptors, job titles, illustrations and pictures which relate to particular protected characteristics may be discriminatory as they may imply that only people with those characteristics are eligible for the job or service being advertised.
Examples
Examples of job adverts that might be unlawfully discriminatory include:
Adverts using job titles or descriptions for job vacancies such as waitress, salesgirl or postman.
Adverts published in a particular language or requiring proficiency in one or more particular languages if the ability to speak those languages is not a genuine requirement for the job. Such adverts are likely to exclude those who do not speak those languages from applying for the job, so they may be racially discriminatory. If proficiency in one or more languages is genuinely required, it is good practice for the advert to appear in English and the required language so that all potential applicants can understand that it is a genuine requirement and the reason for it.
Adverts specifying age limits for applicants or using terms such as ‘young and dynamic’ or ‘mature person’.
When is an advert restricting a job or service to particular groups lawful?
You can require a job applicant or employee to have a particular protected characteristic only where having that protected characteristic is necessary for the role. This is an ‘occupational requirement’ under Schedule 9 of the Act.
An advert should clearly explain the basis and reasons for the restriction.
Example
An example of an occupational requirement might be a charity that is recruiting a community health advocate for the Sikh community and the advocate must be Sikh to communicate effectively with community members.
Where an occupational requirement applies, the employer must ensure it is objectively justifiable. This means it must be a proportionate means of achieving a legitimate aim.
Can you advertise that job applications from particular groups are welcome?
It is not unlawful to tackle disadvantage or underrepresentation by encouraging groups who share a particular protected characteristic to apply for vacancies (positive action). Positive action is lawful if it is reasonable to think that people with a particular protected characteristic are underrepresented or face disadvantage and the action taken will address this and is proportionate.
If you want to take positive action in this way, your advert should clearly state you are seeking applications from everyone but wish to encourage applications from people with a particular protected characteristic because they are underrepresented or face disadvantages.
Positive action in recruitment can only be used to make people from protected characteristic groups aware of recruitment opportunities and encourage them to apply for a job. It cannot be used to restrict the job opportunity to someone with a particular protected characteristic or result in an applicant being treated more favourably during the recruitment process because they have a protected characteristic. However, if the two best candidates for a job are equally qualified, the candidate from a disadvantaged or underrepresented group can be given preference for the job if this is a proportionate means of helping to remove the disadvantage or increase the group’s participation.
It is also lawful to treat disabled people more favourably in a recruitment process. This could include operating a guaranteed interview scheme for those who are disabled and meet the minimum requirements for the post. An advert stating this would not be unlawful.
Guidance on discriminatory adverts | EHRC (equalityhumanrights.com)
