Job applicants are protected by UK law from discrimination in the recruitment process. This protection begins even before the interview stage. Discriminatory wording in a job advertisement can trigger claims not only from unsuccessful applicants, but also from those who are put off applying for the role at all
Blatant discrimination in job advertisements is rare nowadays, but indirect discrimination is rife. The government’s Universal Jobmatch website recently received criticism in the press for posting job advertisements for ‘recent graduates’ - which has a greater adverse impact on certain age groups than others.
What does the law say?
The Equality Act 2010 makes it unlawful to discriminate against or victimise a person in:
• The arrangements for deciding to whom to offer employment;
• The terms on which employment is offered;
• Not offering employment.
Employers, recruitment agencies, businesses and publishers of job advertisements can all be liable for discrimination.
How to avoid discrimination in job advertisements
The obvious way to avoid discriminating is to check the wording carefully before submitting a job advertisement. Consider everything that is included in the advertisement, not just the requirements or criteria. If you repeatedly use the same standard wording, or have any concerns about discrimination, seek legal advice.
Where advertising fees are linked to word count, it is better to pay a little more to fit in a few more words to neutralise potential discrimination than to incur the risk of potentially unlimited discrimination and negative publicity of a discrimination claim. Inadvertent discrimination is best illustrated by some examples.
Age discrimination
Remember that protection extends to younger, as well as older applicants. In addition to the example of ‘recent graduates’ above, common age-related wording includes:
• ‘Maths and English GCSEs essential’. Those born before around 1972 are far less likely have sat GCSE exams than those born after that time. This is easily rectified by the addition of ‘or equivalent’.
• ‘At least 10 years’ experience required’. Unless you can demonstrate that ten years’ experience is really necessary for the role, and that nine years’ experience (or those with an exceptional level of skill acquired in only five years) would not be sufficient, this discriminates against those who are not old enough to have been working for long enough to accrue this period of experience.
• ‘Mature/dynamic/youthful’. These adjectives are sometimes used to describe either the person sought or the culture of the workplace. Either is potentially discriminatory.
Race discrimination
Race discrimination covers colour, ethnic origins, national origins and nationality. Race-related wording in advertisements may include:
• ‘Applicants who do not have the right to work in the UK will not be considered’. Immigration status is connected with nationality and the tribunals have, in some cases, found this requirement to be unlawful race discrimination. It is sometimes possible for an employer to sponsor an employee who would not otherwise have the right to work in the UK.
• ‘Native English-speaker required’. This requirement is harder for those who are from non-English speaking countries or homes to satisfy. It is rare that ‘native’ English will really be necessary for a role. In most cases, fluency will suffice. Where any language skills at all are to be stipulated, ensure that these are really necessary for the role and can be justified.
• ‘French lawyer required’. This one is ambiguous, but it is better to say ‘lawyer qualified to practice in France’ or ‘lawyer with expertise in French law’.
Disability discrimination
• ‘Full clean driving licence required’. Some disabilities will prevent an applicant from driving at all, or may result in limits being placed on their licence. It may be that driving is not essential for the role, or that the role can be adapted so that disabled applicant without the full licence can still perform the role within the limits of the restricted licence. Remember that the duty upon employers to make reasonable adjustments applies to applicants as well as existing employees.
• ‘Young, fit person required’. This is discriminatory on grounds of age and potentially disability. It would be better to specify the duties of the role that may require a certain level of fitness.
Sex discrimination
• ‘Are you a stay at home Mum looking to earn extra cash around looking after your family?’ This of course discriminates against men. The law rarely permits positive discrimination in favour of a group that may be disadvantaged in the job market.
• ‘Waitresses/manageress/handyman/ cleaning lady/stable lad/groundsman/salesman/dinner lady/seamstress wanted’. All of these role titles connote a particular gender and therefore potentially discriminate against applicants of the opposite gender. This can usually be corrected easily, for example ‘groundsperson’ or ‘midday supervisor’.
Where applicants (or non-applicants who were deterred from applying by reason of discriminatory wording in an advertisement) can show that they did not get a job because of the discriminatory requirement, compensation may include the loss of earnings that they would have earned had they been appointed to the role.
Genuine occupational requirements
The law recognises that, for some roles, there will be a genuine need, having regard to the nature or context of the work, for the employee to be of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner).
For example, a women’s refuge may be able to apply a requirement for all staff to be women. An acting role may require applicants for a male character in a production to be male in view of a need for authenticity and realism.
The genuine occupational requirement exemption is a very limited exception, to be interpreted narrowly. It is rare that a genuine occupational requirement will apply across an entire organisation. For example, whilst some roles at a faith school could lawfully require the employee to be of that particular faith, other roles, for example, school gardener, could not.
Anne-Marie Balfour, senior associate at Charles Russell Speechlys LLP Speechlys.
Job applicants are protected by UK law from discrimination in the recruitment process. This protection begins even before the interview stage. Discriminatory wording in a job advertisement can trigger claims not only from unsuccessful applicants, but also from those who are put off applying for the role at all
Blatant discrimination in job advertisements is rare nowadays, but indirect discrimination is rife. The government’s Universal Jobmatch website recently received criticism in the press for posting job advertisements for ‘recent graduates’ - which has a greater adverse impact on certain age groups than others.
What does the law say?
The Equality Act 2010 makes it unlawful to discriminate against or victimise a person in:
• The arrangements for deciding to whom to offer employment;
• The terms on which employment is offered;
• Not offering employment.
Employers, recruitment agencies, businesses and publishers of job advertisements can all be liable for discrimination.
How to avoid discrimination in job advertisements
The obvious way to avoid discriminating is to check the wording carefully before submitting a job advertisement. Consider everything that is included in the advertisement, not just the requirements or criteria. If you repeatedly use the same standard wording, or have any concerns about discrimination, seek legal advice.
Where advertising fees are linked to word count, it is better to pay a little more to fit in a few more words to neutralise potential discrimination than to incur the risk of potentially unlimited discrimination and negative publicity of a discrimination claim. Inadvertent discrimination is best illustrated by some examples.
Age discrimination
Remember that protection extends to younger, as well as older applicants. In addition to the example of ‘recent graduates’ above, common age-related wording includes:
• ‘Maths and English GCSEs essential’. Those born before around 1972 are far less likely have sat GCSE exams than those born after that time. This is easily rectified by the addition of ‘or equivalent’.
• ‘At least 10 years’ experience required’. Unless you can demonstrate that ten years’ experience is really necessary for the role, and that nine years’ experience (or those with an exceptional level of skill acquired in only five years) would not be sufficient, this discriminates against those who are not old enough to have been working for long enough to accrue this period of experience.
• ‘Mature/dynamic/youthful’. These adjectives are sometimes used to describe either the person sought or the culture of the workplace. Either is potentially discriminatory.
Race discrimination
Race discrimination covers colour, ethnic origins, national origins and nationality. Race-related wording in advertisements may include:
• ‘Applicants who do not have the right to work in the UK will not be considered’. Immigration status is connected with nationality and the tribunals have, in some cases, found this requirement to be unlawful race discrimination. It is sometimes possible for an employer to sponsor an employee who would not otherwise have the right to work in the UK.
• ‘Native English-speaker required’. This requirement is harder for those who are from non-English speaking countries or homes to satisfy. It is rare that ‘native’ English will really be necessary for a role. In most cases, fluency will suffice. Where any language skills at all are to be stipulated, ensure that these are really necessary for the role and can be justified.
• ‘French lawyer required’. This one is ambiguous, but it is better to say ‘lawyer qualified to practice in France’ or ‘lawyer with expertise in French law’.
Disability discrimination
• ‘Full clean driving licence required’. Some disabilities will prevent an applicant from driving at all, or may result in limits being placed on their licence. It may be that driving is not essential for the role, or that the role can be adapted so that disabled applicant without the full licence can still perform the role within the limits of the restricted licence. Remember that the duty upon employers to make reasonable adjustments applies to applicants as well as existing employees.
• ‘Young, fit person required’. This is discriminatory on grounds of age and potentially disability. It would be better to specify the duties of the role that may require a certain level of fitness.
Sex discrimination
• ‘Are you a stay at home Mum looking to earn extra cash around looking after your family?’ This of course discriminates against men. The law rarely permits positive discrimination in favour of a group that may be disadvantaged in the job market.
• ‘Waitresses/manageress/handyman/ cleaning lady/stable lad/groundsman/salesman/dinner lady/seamstress wanted’. All of these role titles connote a particular gender and therefore potentially discriminate against applicants of the opposite gender. This can usually be corrected easily, for example ‘groundsperson’ or ‘midday supervisor’.
Where applicants (or non-applicants who were deterred from applying by reason of discriminatory wording in an advertisement) can show that they did not get a job because of the discriminatory requirement, compensation may include the loss of earnings that they would have earned had they been appointed to the role.
Genuine occupational requirements
The law recognises that, for some roles, there will be a genuine need, having regard to the nature or context of the work, for the employee to be of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner).
For example, a women’s refuge may be able to apply a requirement for all staff to be women. An acting role may require applicants for a male character in a production to be male in view of a need for authenticity and realism.
The genuine occupational requirement exemption is a very limited exception, to be interpreted narrowly. It is rare that a genuine occupational requirement will apply across an entire organisation. For example, whilst some roles at a faith school could lawfully require the employee to be of that particular faith, other roles, for example, school gardener, could not.
Anne-Marie Balfour, senior associate at Charles Russell Speechlys LLP Speechlys.
