Avoiding discrimination in job adverts

The Equality Act 2010 is not merely concerned with preventing discriminatory behaviour and practices at work. It also covers pre-employment issues such as job advertising.

Because the tone, imagery and wording of a job advertisement can tell people in general and applicants in particular a good deal about the company that placed it, the consequences of an advertisement that sends the wrong messages regarding equality and inclusivity can be manifold. Potential applicants, some of whom could bring a great deal to the company, might be put off by the imagery and wording that they see. The community in general may take away the impression that the company doesn’t represent their values and other organisations, particularly those in the public sector who have to comply with the Public Sector Equality Duty may reconsider their involvement with the company.

It’s important therefore that employers should be careful when they are drafting, formatting, illustrating or wording their advertisements so that they do not appear to restrict the type of applicant they receive or exclude any particular group.

Things to bear in mind.

Employers should consider the various factors that can affect how a job advertisement is received by potential applicants.

• Consider the message that is being sent out by the photographs and/or descriptions that are used in the advertisement. Do they have any implications that may not have been considered when initially selecting them?

• Make sure that the advertisement is accompanied by an equal opportunity statement that applications are welcomed from anyone with the required qualifications or experience, regardless of background or protected characteristics.

• Where is the vacancy being advertised? If it has been placed in too narrow a range of publications or outlets, there is a greater chance that the company may face an allegation of discrimination.

• The vacancy may be subject to an occupational requirement because of the nature of the role. If this is the case, then it is important to state this clearly in the advertisement. This can help to justify what might otherwise be perceived as discrimination and head off unwelcome allegations.

• Ensure that the advertisement concentrates on what the successful candidate needs to carry out job tasks. This needs to be concrete rather than abstract and will reduce the chances that the advertisement could be read as discriminatory. Unless a physical characteristic (such as height) is a genuine requirement of the job that is needed to achieve a legitimate business aim, it should not be included in the job advertisement. The same goes for physical ability.

• When discussing competencies or experience, avoid age requirements – these are a minefield for discrimination allegations. However, there are situations when the age of an applicant will be a factor in recruitment – this will most often relate to the handling or sale of certain goods or services that are restricted by age.

• Religious requirements should only be used if there is a genuine occupational requirement for them and the advertiser can provide an objective justification – this is important as religion is a somewhat contentious subject and any requirement is likely to attract accusations of discrimination.

• Care should be taken to avoid job titles that involve a particular gender, as this would carry with it the implication that the job can be done only by the gender specified.

• Neutral job titles should be used, or rewording that avoids the need for mention of gender altogether.

Occupational requirements and positive action

There are situations in which an employer will genuinely require somebody with a particular set of skills or characteristics in order to fill a very specific vacancy. These situations, however, are limited and are generally described as a “genuine occupational requirement”. The onus is usually on the employer to prove that the occupational requirement is genuine and cannot be fulfilled in a way that is compliant with the Act.

The Act also allows employers to react to shortages within the workforce of groups who have a particular protected characteristic by taking ‘positive action’. This must be proportionate to the problem that has been identified and will usually be prefaced by wording such as “We particularly welcome applications from…” and the name of the group in question.

The consequences of discriminatory adverts

If an advertisement is discriminatory, the fault lies not only with the person who drafted the advertisement in the first place but also with the person or organisation who publishes it. In many instances, somebody who places an advertisement will be doing so within an organisation which has somebody in place to check compliance with the law. However, this is not always the case; if no checks are made on the wording, imagery or formatting of the advert by the person who will be publishing it, they will then share responsibility for any discriminatory content it has.