The Equality and Human Rights Commission (EHRC) has recently published new guidance on how to ensure your job (and other) adverts are not discriminatory. When you’re advertising for a role, or advertising goods or services, it’s important to make sure that you don’t discriminate against people who have a protected characteristic (eg age, sex, disability, pregnancy and more). There are some limited exceptions to this rule, but you must be able to justify any potential discrimination with a legitimate aim.
This blog discusses what a discriminatory advert is, how to avoid being discriminatory in your ads, and what action the EHRC may take against you if they believe you have published a discriminatory advert.
What is a discriminatory advert?
A discriminatory advert is an advert which restricts access to jobs, goods, facilities or services to people with particular protected characteristics, such as to men or to people of a particular age group. Examples given by the EHRC include:
- adverts specifying age limits for applicants or using terms such as ‘young and dynamic’ or ‘mature person’;
- adverts published in a certain 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;
- adverts using discriminatory job titles or descriptions for job vacancies such as waitress, salesgirl or postman;
- adverts for services which exclude certain people, for example, adverts for a new parent and toddler group that do not accept fathers or same-sex parents.
The protected characteristics that you need to consider when advertising are:
- age
- disability
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race
- religion and belief
- sex
- sexual orientation
Are there any exceptions?
There are very limited circumstances in which you can target or restrict your ads to a particular group of people. You must have a legitimate aim for doing so, and your advert must be a proportionate way of achieving that aim. Your advert should also clearly explain the basis and reasons for the restriction.
EHRC’s examples of adverts that could be discriminatory but have a legitimate aim (and are therefore permitted) include:
- a charity that is advertising to recruit a community health advocate for the Sikh community, and it is necessary for the person to be Sikh to communicate effectively with community members;
- a specification that a public changing room attendant is the same sex as the people using the facilities, in order to protect the privacy and dignity of users.
Note that where you require an applicant to be a ‘woman’, this includes individuals who are recorded female at birth and also transgender women who have obtained a Gender Recognition Certificate (GRC). However, if there is an objectively justifiable reason to exclude trans women who have a GRC, this is permitted under the Equality Act.
What about positive action for minority groups?
You are permitted to encourage groups who share a particular protected characteristic to apply for vacancies, if it is reasonable to think that those people are underrepresented or face disadvantage and the action you are taking will address this and is proportionate. You should still accept applications from everyone, but you may note in your job advert that you encourage applicants with a certain protected characteristic to apply (and this is because they traditionally face disadvantage or are underrepresented).
Note that you should not treat the person with a protected characteristic more favourably than other applicants, or restrict the job opportunity to only those with a protected characteristic. However, if the two best candidates are equally qualified, you may favour the applicant with the protected characteristic if this is a proportionate way of addressing the inequality. An exception to this rule is disability; you are allowed to treat disabled applicants more favourably than other applicants, for example by running a guaranteed interview scheme for disabled applicants.
What happens if my advert is discriminatory?
Anyone can complain about your advert and make a claim for legal discrimination. The EHRC can take action in relation to a discriminatory advert (whether as a result of an individual’s complaint or for any other reason), and the ASA also investigates dishonest and unfair advertising.
If the EHRC receives a complaint, they will assess the advert and write to the advertiser asking for their justification for the advert. If they receive a reasonable justification or an assurance that the advert was a mistake and will not happen again, they usually close the complaint. However, if they do not receive a response they will consider enforcement action.
If you receive a complaint from an individual, or correspondence from the EHRC, about an advert you have published, it’s important to address the complaint promptly and respectfully. If you have made a genuine error, you should admit this, withdraw the advert if you can and provide a strategy for how you will ensure it does not happen again. If you disagree that the advert is discriminatory, or you believe you have a reasonable justification for the advert, you should explain this clearly and courteously.
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Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.