The Equality and Human Rights Commission (EHRC) has published guidance for employers in relation to advertising goods, facilities and services. They have also published a checklist and FAQs.
When the Equality Act came into force, there was a lot of talk about discriminatory adverts, however, we have seen very few examples of people bringing claims in relation to adverts.
Despite this, the EHRC has reported that in just over 12 months it has received over 100 complaints that adverts were discriminatory. Examples include complaints of age discrimination where adverts have been placed seeking ‘young’ workers, where this was not a requisite requirement for the job.
Therefore, employers definitely need to be careful when advertising.
Whilst the guidance does not have statutory legal authority, the Tribunals are likely to consider the guidance in discrimination claims.
When is a job advertisement discriminatory?
An advert may be discriminatory if it restricts employment to a particular group of people because of a protected characteristic or if it places a group of people with a protected characteristic at a disadvantage compared with others.
There are 9 protected characteristics:
• religion or belief
• gender reassignment
• pregnancy and maternity
• marriage and civil partnership
• sexual orientation
The guidance sets out what would constitute direct and indirect discrimination and provides useful examples.
One example it provides is where a club advertises that “spouses” will receive free membership but does not extend this to civil partners. This directly discriminates against people in a civil partnership because of their sexual orientation.
Bear in mind that an advert may not at first glance appear discriminatory.
Adverts should be reviewed carefully before they are published.
What can and cannot be included in advertisements:
The guidance advises on whether it is permissible for an advert to:
• ask for a particular type of person in a job advert;
• restrict the provision of goods, facilities or services to a particular group;
• advertise accommodation restricted to particular groups;
• advertise that job applications from particular groups are welcome;
• advertise that a service welcomes participation from particular groups;
• encouraging applications from particular groups.
It is not unlawful to encourage applications from groups who share a particular protected characteristic in order to address underrepresentation as long as the advert makes it clear that it is seeking applications from everybody but wishes to encourage applications with a particular protected characteristic. This is called positive action.
What to do if you are unsure about the content of an advert
If you want to discuss the content of an advert before it is placed, please contact Analysis Legal. As one of the leading employment law firms in Stockport, we have years of experience supporting clients through discriminative adverts cases, and can help you reach the best possible outcome when faced with injustice in the workplace.
Once again Analysis Legal LLP is a leading firm in the Legal 500 directory, which states the firm ‘contains a deep bench of committed and commercially savvy lawyers’.