Mon 3 August, 2020
Searching for the ideal job candidate is a job in itself and in doing so employers have to be extra careful not to fall foul of the law.
In all aspects of life when we know what we want, the hard part is usually acquiring it, and doing it in a way that is lawful.
When it comes to recruiting to fill a vacancy, the job advert will clearly spell out exactly what an employer is looking for. It appears a simple a task, but it can be a legal minefield.
There are rules around writing job adverts to ensure that they are not discriminatory.
Using the wrong words or phrases can land an employer in serious trouble and be found to be discriminatory.
It is against the law to treat someone less favourably than someone else because of a personal characteristic such as religion, sex, gender reassignment or age (1). Discrimination can include not hiring someone
An employer can discriminate against someone even if it did not intend to. For example, it can discriminate indirectly by offering working conditions or rules that disadvantage one group of people more than another.
An online article from the Irish Times delved into its archives to highlight some job ads from the 1970s (2).
It included an advertising agency requiring ‘a talented, imaginative young man’, a music label seeking a ‘man with initiative’, a provincial newspaper calling for a ‘young energetic man of drive’ to be their next senior reporter, a professional body after a ‘top-grade lady secretary’, the retailer’s secretarial position ‘ideal for a highly-qualified girl’ and the utility company searching for ‘female clerks’.
Such adverts are now illegal, but the language used does not have to be that blatant to be found discriminatory.
In the case of Rainbow v Milton Keynes Council (2008) an 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 the grounds of age since more experienced - therefore older - applicants were put at a disadvantage (3)
There are certain roles where there is a genuine occupational need for an employee to be of a certain race, religion or gender. The Equality and Human Rights Commission, in the Employment Statutory Code of Practice, state that ‘a women's refuge which lawfully provides services to women only can apply a requirement for all members of its staff to be women’ (4) .
Provisions within the Equality Act 2010 make it lawful for employers to target measures such as dedicated training to groups, such as women or people from ethnic minorities, who are under-represented or disadvantaged in the workplace, or to meet their particular need (5).
It is known as positive action and means that it is not unlawful discrimination to take special measures aimed at alleviating disadvantage or under-representation experienced by those with a protected characteristic (for example sex, age, disability, race).
ACAS tips on avoiding unfair discrimination in job adverts include avoid using terms such as:
- ‘Highly experienced’ and ‘recent graduate’, which can be considered to discriminate on the grounds of age.
- Terms such as ‘barmaid’ and ‘handyman’ can discriminate against someone’s sex.
- ‘German sales rep’ can be found discriminatory on the grounds of race.
- Also clothing requirements, such as wearing a hairnet in the kitchen could discriminate against someone on religious grounds because they cover their head in other ways.
In job adverts employers are advised to make clear what the job requires and to help avoid unintended discrimination, it is a good idea to provide the following:
- Job description
- Job application form
- Person specification
- Information about the business
- Equality and diversity monitoring form
They should be provided as part of the advert or once applications have been received.
(1) Discrimination can include not hiring someone [Internet] www.gov.uk [Cited 03.08.2020] https://www.gov.uk/employer-preventing-discrimination
(2) The Irish Times delved into its archives to highlight some job ads from the 1970s [Internet] www.irishtimes.com [Cited 03.08.2020] https://www.irishtimes.com/business/media-and-marketing/sexist-job-advert-legacy-of-the-1970s-still-lingers-1.3913457
(3) An employment tribunal held for a job advertisement stating that a particular teaching role [Internet] https://uk.practicallaw.thomsonreuters.com [Cited 03.08.2020] https://uk.practicallaw.thomsonreuters.com/6-383-1681?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
(4) A genuine occupational need for an employee to be of a certain race, religion or gender [Internet] www.equalityhumanrights.com [Cited 03.08.2020] https://www.equalityhumanrights.com/en/publication-download/employment-statutory-code-practice
(5) Provisions within the Equality Act 2010 make it lawful for employers to target measures [Internet] www.legislation.gov.uk [Cited 03.08.2020] https://www.legislation.gov.uk/ukpga/2010/15/section/158
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