It is generally unlawful for an employer to publish a discriminatory advertisement or cause one to be published. There are some exceptions (see below), such as positive action or genuine occupational requirement, but these rarely apply in practice.
A discriminatory job advertisement is one which indicates, or which might reasonably be understood as indicating, that an employer intends to commit an act of unlawful discrimination when determining who should be offered employment. It is unlawful to discriminate on the grounds of race (including nationality and ethnic origin), sex, disability, sexual orientation, religion/belief or age.
How to avoid posting a discriminatory advertisement:
• Be careful about your choice or words. For example, the law presumes that the use of job titles or descriptions which have a sexual connotation, such as “waitress” “stewardess” “warehouse man”, indicate an intention to discriminate on the grounds of sex, unless the ad contains an indication to the contrary.
• Use language, where possible, that is gender neutral, for example, “waiting staff” “steward” “warehouse person”.
• Where it is not possible to avoid using a job title or description which has a sexual connotation, then a prominent equal opportunities statement should be added to the advertisement to indicate that the employer welcomes applications from all suitably qualified men and women. In other circumstances, whilst not necessary, it is generally good practice to place an equal opportunities statement in the advertisement. The choice of words is up to the individual employer, but some examples are as follows:
“We are an equal opportunities employer”; or
“We are an equal opportunities employer and welcome applications from all suitably qualified persons regardless of their race, sex, disability, religion/belief, sexual orientation or age”.
• Use language which is clear and simple and do not use vague or abstract words. For example, when describing the working environment or the characteristics of the desirable candidate avoid using words such as “young” “mature” “dynamic” “energetic”, as these may indicate an intention to discriminate on the grounds of age or disability.
• Care should be taken to eliminate references to non-essential experience or qualifications which might directly or indirectly discriminate against some candidates. For example, requiring a job applicant to have ten years work experience may, unless such a criterion can be objectively justified, amount to unlawful indirect age discrimination against younger job applicants.
Genuine Occupation Requirement
Where an employer intends to rely on a genuine occupational requirement exception (i.e. where it is genuinely necessary for the job to be carried out by a person of a particular sex, race, age etc.) then this fact should be stated in the advertisement. A genuine occupational requirement, for example, may be relied upon where the essential nature of the job calls for a person of that sex for reasons of physiology (excluding physical strength or stamina) or in dramatic performances or other entertainment, for reasons of authenticity.
Information on the particular wording to use in different circumstances may be obtained from the Commission for Equality and Human Rights. Employers should seek advice from the commission or their own legal advisers prior to designating jobs as having genuine occupational requirements.
The term ‘positive action’ refers to a range of measures and development initiatives that employers can lawfully take to help or encourage people from under-represented groups to apply for and/or to compete for jobs on equal terms with other applicants. Positive action can also include specific training courses with particular groups to ensure that they can compete with their peers on a level playing field.
However, positive action does not remove competition for jobs and any initiative undertaken as positive action should stop before any part of the selection process. This means that at the short listing and selection stage the person or persons selected are selected on the basis of merit and their ability to carry out the job.
Employers should seek advice from the Commission for Equality and Human Rights or their own legal advisers prior to developing and implementing a positive action programme.
For specific employment advice, covering areas such as redundancy and dismissal, TUPE transfers, contractual issues, remuneration, employee benefits and staff policies, IPA members can contact Employment Legal Manager directly on 020 7201 8206