The Equality and Human Rights Commission (EHRC) recently published a refreshed version of its 2016 guidance on avoiding unlawful discriminatory adverts. But what exactly does that mean for recruiters and businesses? We take a look into how the often-underestimated power of advertisements can create division, enforce stereotypes and be discriminatory towards the potential talent pool, and how to ensure adverts are inclusive and compliant with the Equality Act 2010. The updated guidance serves as an opportunity for employers to reassess their practices in light of common misapplications of exceptions under the Act.
What do we mean by discriminatory adverts?
The Equality Act 2010 protects individuals from being discriminated against because of various protected characteristics, such as disability, age, race, religion and sex, amongst others. This means that even when businesses wish to target a specific audience for recruitment, they cannot advertise the job or their services in a way that would restrict or exclude a group with particular protected characteristics. This applies to all parts of the advert, from its illustrations to its description. For example, employers cannot lawfully place adverts that seek to limit applicants due to their age or gender (“young people only” or “waitresses”) because such terms can be discriminatory.
Of what should employers be mindful?
Making job adverts inclusive goes beyond the need for compliance with the Equality Act 2010 and the need to minimise the risks of discrimination claims. Using inclusive terminology and making equal opportunities part of the message can help businesses make better use of the diverse talent pool. It also helps bridge the employment gap for underrepresented groups or those who face significant challenges finding employment in certain sectors. Simple steps such as providing training for recruitment and HR personnel can promote a better understanding of adverts by addressing unconscious biases and educating on the use of non-discriminatory language.
In limited cases, the Equality Act 2010 allows for what is known as “positive action”, which can be a powerful tool for employers to target certain groups with protected characteristics without discriminating against others. Positive action allows employers to publish job adverts that seek to overcome the disadvantages faced by individuals with certain protected characteristics by encouraging their increased participation in employment. For example, if a business identifies that individuals from a certain ethnicity are underrepresented within their organisation and more widely within the sector, they can say that all applicants are welcome but specifically include a statement that such candidates are welcome to apply. It is key to note that any positive action should be proportionate and reasonably necessary to achieve the aim. Employers are encouraged to document the entirety of the process if they wish to take positive action.
Further, it is worth noting that it is lawful to treat disabled people more favourably than other applicants during recruitment stages. It is also permissible to require applicants to have a protected characteristic provided that it is closely linked to, and justified by, the nature of the role. This is referred to as an “occupational requirement” and allows employers to, for example, advertise for female-only candidates if the job is for a women’s-only shelter or a changing room. Beyond the narrow confines of these measures, positive discrimination remains unlawful.
Key takeaways
In pursuing a more diverse and inclusive workforce, the refreshed guidance from the EHRC can be a crucial tool for recruiters and employers as it underscores the importance of creating job adverts that are not only compliant with the Equality Act 2010 but also embrace the richness of the talent pool. Should employers wish to encourage certain groups to apply for their roles, they should be mindful of the intricacies of positive action so that they do not enter into the territory of positive discrimination. Rethinking some commonly used words that imply certain age, gender or other stereotypes can be a good first step in understanding how to manoeuvre the landscape of inclusive advertising.
Should you like advice on or a review of your recruitment advertisements or practices, please feel free to reach out to your usual Dentons contact.
