Could Your Recruitment Methods Put Your Business At Risk Of Discrimination Claims?

Many employers choose to recruit to internal job vacancies themselves and are successful at doing so. But there can be a few pitfalls. Firstly, in any recruitment process the task should be to define the role itself. What is it you want this recruit to do? When done properly, this will form the job description and person specification. Then you’re in a position to write a job advert.

Placing or publishing a discriminatory advert is unlawful under the Equality Act 2010 (‘the Act’). The Act protects individuals from discrimination because of sex, race, disability, gender reassignment, pregnancy and maternity, marriage and civil partnership, religion and belief, sexual orientation and age (‘protected characteristics’). Employers are legally responsible for any discriminatory adverts they may place for job vacancies.

Here are some questions employers should ask themselves to make sure that a job advert does not discriminate:

1. Are you advertising a job opportunity restricted to a particular group?

An employer can require a job applicant or employee to have a particular protected characteristic in very limited circumstances. This is where having that protected characteristic is necessary for the particular role (it is an ‘occupational requirement’), or one of the specific exceptions in the Act applies. Where an occupational requirement applies, the employer must ensure that imposing the requirement is objectively justifiable.

Examples of requirements for applicants that may be discriminatory are:

  • Physical characteristics: These should be excluded from advertisements unless it can be shown that they are a real requirement of the job that is proportionate to achieve a legitimate aim. For example, a requirement for a firefighter to pass a physical fitness test is likely to be lawful, but requiring applicants to be of a particular height may not, and may disproportionately exclude women and disabled people.
  • Age requirements: These should be excluded unless they can be objectively justified. Requirements such as ‘recent graduate’ may be indirectly discriminatory against older people.
  • Driving license requirements: These may disproportionately exclude disabled people and must not be included unless driving is a genuine requirement for the role.
  • Religious requirements: These should be excluded unless they are an occupational requirement and can be objectively justified. Requiring an accountant for a Catholic school to be Catholic is unlikely to be lawful because it is unlikely that observing a faith is needed to perform the role.
    Where a restriction is applied, the advert must clearly state the reason for the restriction. For example, an advert for a care assistant for female service users might state: ‘due to the provision of intimate care, this vacancy is restricted to women only’.

2. Where are you advertising a job?

Advertising widely, in a way which avoids the risk of excluding qualified people, is the best way of maximising the number of high quality applicants. For example, advertising a catering job only in Polish newspapers targets one group and is likely to exclude similarly qualified people able to do the job.

3. Does a job description or photograph attached to the advert imply that the job is open only to applicants who have a particular personal characteristic?

Descriptors, job titles and photographs that describe personal characteristics may be discriminatory as they imply only people with those characteristics are eligible for the job. To avoid implying that there is any restriction on who may apply, it is advisable to use neutral descriptions of the skill or experience you are seeking. For example:

  • Avoid words such as ‘young’, ‘mature’ and ‘recent graduate’, which imply a certain age is a requirement for a job and so exclude potential applicants. This may amount to unlawful discrimination. Instead, focus on the required competencies or experience.
  • Avoid job titles that imply a job may be done by men or women only. For example, instead of ‘handyman’ or ‘barmaid’, use ‘maintenance worker’ or ‘bartender’.
  • Avoid images that imply jobs are associated with particular groups, such as photographs showing only male mechanics or only female nurses. Use images that are neutral, for example, a picture of a hospital or a group of male and female nurses.
  • Include a prominent equal opportunities statement that applications are welcome from all suitably qualified or experienced people to make clear that all applicants are welcome.

4. How do I advertise a job that requires an ability to be proficient in particular languages?

A requirement to be proficient in one or more particular languages will not be discriminatory where it is a genuine requirement for the job. In order for all potential applicants to understand that it is a genuine requirement, it is good practice to advertise in English, as well as the required language if preferred. For example, an advert for a salesperson who will have to deal with Dutch buyers may state a requirement for applicants to speak Dutch, but it is good practice for the job to be advertised in English or, if preferred, in both English and Dutch so that all potential applicants are aware of the requirement. However, advertising for fruit pickers in Polish only is likely to exclude non-Polish speakers from applying. The ability to speak Polish is unlikely to be a genuine requirement for the job so the advert would be unlawfully discriminatory.

More information can be found from the Equality and Human Rights Commission click here.

For any questions on this topic, please don’t hesitate to get in touch with us at [email protected] or on 01386 751740.