The wording in Your Job Advert and Discrimination by Elizabeth Babafemi, B.Eng MCIPD – MBA – Doctoral PhD Student
If we only recruited people from a certain age range, race or gender, life would be pretty dull!! I once saw an advert that read: the company is looking to recruit an individual with “at least seven years’ experience (preferably continuous)”
Why is this discrimination?
It is arguably discriminatory on the grounds of age and, possibly, sex. The fact that the advertisement specifies a requirement for individuals with “at least seven years’” experience invariably means that older applicants are more advantaged than younger applicants since they are more likely to have at least that level of experience. Furthermore, the fact that seven years’ continuous experience is stated to be preferable arguably means that women are being put at a disadvantage because they are more likely to have had a break in employment (to care for children, for example) than their male counterparts.
The legislation can be a somewhat difficult and blurry area to understand, especially as many employers are unaware of how the wording in their job advert can be seen as discriminatory. It is no wonder you may have heard a number of cases about businesses and companies facing legal action over discrimination in their job advert.
Below is by no means a definitive list, and there are a number of other ‘protected characteristics’ which should be carefully considered when drafting a job advert, particularly, of course, if they are requirements for the job.
If in doubt, keep the language neutral. That way you may ensure you don’t miss out on the right candidate for the role and that you keep your recruitment equal, and inclusive.
Over the years, I have seen some ads state: ‘English must be your first language’. Admittedly the jobs being advertised are writing jobs that require a certain ability with words, but surely the question of whether English is your first or second language should not come into it. Could you not be someone who speaks both languages equally fluently?
Some job boards are visited by lots of people from foreign countries, I would be more inclined to interpret ‘English must be your first language’ as ‘no foreigners please’.
To attract the right quality of applicants, we should get our adverting process right. We should plan and carefully consider the content and design of the job advert. We should also identify the most suitable media for advertising the job in order to reach an appropriate audience.
There are lots of rules around writing job adverts, mostly based around best practice to attract candidates. But certain rules are there to ensure you don’t fall foul of discrimination law.
Only use phrases like ‘recent graduate’ or ‘highly experienced’ when these are actual requirements of the job. This could discriminate against younger or older people who might not have had the opportunity to get certain qualifications.
When can you discriminate?
You can specify that the successful applicant will be from a particular group if it’s a requirement of the job. For example, people under 18 cannot legally sell alcohol.
Avoiding sexual discrimination
As much as you might want to balance up your gender heavy department with a member of the opposite sex, this is strictly forbidden to ask for within a job advert.
Gender-specific terms could also be problematic. Using ‘barmaid’ or ‘handyman’, for instance, implies that the job is only available to one or other sex. ‘German-speaking sales rep’ should be used over ‘German sales rep’, because it would be discriminatory single out one nationality if it’s just the language skill that’s needed.
There are certain roles where there is a genuine occupational need for an employee to be of a certain gender, such as within single-sex institutions like hospitals and prisons. You are never allowed to consider that hiring one gender may provide a benefit in terms of physical performance unless that performance is of a thematic nature (such as the need for a male to play Father Christmas).
a) It is vital to prepare a job description and person specification as these can provide us with a useful basis for designing a job advertisement.
b) All forms of job advert are covered by the Equality Act 2010.
If an employer does advertise a job, they must not state or imply that a job is unsuitable for disabled people generally or for a disabled person with a particular type of impairment, unless there is a very clear job-related reason for this.
An employer is advertising for somebody to deliver parcels on their own; the advertisement states that the successful applicant will have to drive and be able to lift the parcels. The need to drive is clearly required for the job. Although it may exclude some disabled people e.g. those with a sight impairment, it would not exclude all disabled people. It would, therefore, be wrong – and discriminatory – to put ‘unsuitable for disabled people’ in the job advert.
c) Employers must not publish adverts that indicate, or could reasonably indicate, an intention to discriminate.
For example, An employer advertises for a ‘waitress’. To avoid direct discrimination because of sex, they should advertise for ‘waiting staff’ or ‘waiter or waitress’. The job title you use should therefore never be gender-specific – ‘waitress’, ‘salesman’ and ‘manageress’ are all terms that fall foul of the law.
d) Adverts should contain enough information about the job and the organisation to help applicants decide if they are suited to the job.
e) Adverts must not target applicants with a particular protected characteristic unless this is an occupational requirement or lawful positive action. Positive action may be used to encourage applications from under-represented groups
f) Relying upon ‘word of mouth’ recruitment has the potential to indirectly discriminate.
A large employer recruits workers for driving jobs through word of mouth. This results in everyone who has a driving job being a member of the same few families or a friend of these families. All the family members and their friends are white, despite the workplace being in an area of high ethnic minority population. Unless the employer can objectively justify the way drivers are recruited, this is likely to be indirect discrimination because of race.
g) Employers may be liable for the discriminatory actions of third parties, who are advertising on their behalf.
h) Employers must not put pressure on third parties to discriminate in the recruitment process.
Avoiding age discrimination
Age discrimination is an area to consider when writing job adverts, and it is one of the biggest changes in the process that most employers will have to go through in order to comply with all discrimination regulations. The rules now not only cover stipulating upper or lower age limits for job applicants but also implied terms such as ‘youthful’, ‘dynamic’ or ‘mature’. All these terms could be seen as excluding someone from applying for a role based on their age.
Even asking for a certain level of experience from candidates could be deemed as discriminating against someone who hasn’t had the opportunity to gain that experience as they are too young. There are plenty of ways of rephrasing your job advert, such as asking for candidates who have demonstrated a certain task but putting a number of years on how long they have taken to achieve that task is definitely out of the question.
i) Employers must provide temporary agency workers/fixed-term employees with information on relevant job vacancies.
Other examples: A job advert requiring that applicants must be clean-shaven could put members of some religious groups at a disadvantage. However, if this is fully justified by stating that it could be a genuine hygiene risk if individuals handle food, then this criterion would then be lawful.
Avoid gender-based discrimination: Ensure your job title doesn’t include terms like “waitress”, “admin girl”, “mailman” or “salesman”. That way you won’t find yourself in hot water.
Avoid racial discrimination: Even if the ability to speak a foreign language is critical to the role, it’s the proficiency in the language as opposed to one’s country of origin that is key. So “the ability to speak Mandarin is essential” is far more favourable than “you must be Chinese”.
Avoid age discrimination: Never mention an age requirement or refer to a specific number of years someone has worked in a particular field … ever.
Questions you can’t ask when recruiting: You must not ask candidates about protected characteristics and their health; if they’re married, single or in a civil partnership; if they have children or plan to have children.
You can ask about health or disability if: There are necessary requirements of the job that can’t be met with reasonable adjustments; you’re finding out if someone needs help to take part in a selection test or interview; you’re using ‘positive action’ to recruit a disabled person
Date of birth: You shouldn’t ask someone for their date of birth on an application form. People selecting candidates for interview or interviewing shouldn’t be influenced by someone’s age. You can include a question on date of birth as part of an equality monitoring form if you use one.
Criminal convictions: Applicants don’t have to tell you about criminal convictions if they’re spent. You must treat the applicant as if the conviction has not happened, and cannot refuse to employ the person because of their conviction. There are some areas of employment that are exempt from this rule, e.g schools.
Trade union membership: You must not use membership of a trade union as a factor in deciding whether to employ someone.
Disabled people: When recruiting you can treat a disabled person more favourably than a non-disabled person because of their disability.
Examples of cases of discrimination
There have been some interesting developments in case law surrounding job advertisements. A few years ago, the employment tribunal held that a job advertisement stating that a particular teaching role “would suit candidates in the first five years of their career” was indirectly discriminatory on grounds of age since more experienced (and hence older) applicants were put at a disadvantage (Rainbow v Milton Keynes Council 1200104/2007, 2 June 2008).
In that case, the employer tried to justify the wording in its advert by claiming that it had financial constraints and essentially could not afford to employ someone of the claimant’s seniority for the role in question. However, it did not provide any detailed evidence to show this and did not demonstrate that other types of financial strategy had been taken into account to achieve a similar cost-saving. The tribunal rejected the employer’s argument because there was a lack of evidence of the cost issue, the employer had not explored other cost-saving measures and costs was the sole justification put forward by the employer.
The upshot of that case was that if employers are to rely on cost as a defence, they should combine it with other reasons and also provide evidence to support their arguments – a mere assertion of costs as a reason is not good enough. The European Court of Justice (“ECJ”) in the past held that there does not need to be an identifiable victim or complainant for there to be a successful claim of direct discrimination against a company (Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV C-54/07). The facts of that case were quite extreme. A director of the Belgian company in question (which specialised in the installation of doors) made a public statement to the Belgian media that the company would not employ Moroccans as its customers did not want immigrants in their homes. Proceedings were brought by the Belgian equivalent of the Equality and Human Rights Commission in the UK.
The ECJ held that the company’s public statement was direct discrimination contrary to the EU Race Discrimination Directive, even though no individual had brought a claim as a result of it. The court rejected the argument that there could not be direct discrimination where the employer did not actually act on the discriminatory statement. The statement had a humiliating and demoralising effect on the people of the ethnic origin in question who would have been interested in applying for the position. It would also discourage such people from applying and was therefore discriminatory. In the UK, it is already unlawful to publish advertisements that display an employer’s discriminatory recruitment practices. However, although this case is likely to have a limited impact in the UK because the Equality and Human Rights Commission does not have the power to bring a claim against employers where there is no identifiable complainant, employers should still be alive to the issue and consider the wording of their job advertisements very carefully.
*This entry was posted in Pulse and was written by Elizabeth Babafemi, B.Eng MCIPD – MBA – Doctoral PhD Student
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