Watch Your Wording: Equality and Job Advertisements

Despite the existence of equality legislation, some employers are still getting it wrong when it comes to the recruitment process. Whilst the majority of discrimination in job advertisements is down to pure ignorance rather than any malicious intent, it can still land you in hot water. Fail to keep a close eye on the wording of your job ads and you could find yourself being taken to an employment tribunal. So, as an employer, what do you need to bear in mind when writing your vacancy description?

What is recruitment discrimination?

Under the Equality Act 2010, you cannot treat someone unequally or unfairly because they have one or more ‘protected characteristic’. This means it is unlawful to discriminate against someone on the basis of:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Race
  • Religion
  • Sex
  • Sexual orientation

It’s possible to discriminate against someone directly or indirectly. Direct discrimination occurs when you exclude or treat a candidate less favourably on the basis that they either have one or more of the above characteristics, you assume they have one or more of the characteristics or they are associated with someone who has.

Indirect discrimination applies to wider work policies. If a recruitment policy that applies to all job candidates unfairly disadvantages those with protected characteristics, it could be discriminatory.

Every step of your recruitment process needs to treat all candidates in an equal, dignified and respectful manner, but it all starts with the way you advertise a position within your company. As mentioned, many of the employers who don’t get their job ads right aren’t doing it intentionally. You might not even realise that by using certain words or phrases, you may be excluding people unfairly. Examples of some common mistakes include:

  • Being too prescriptive about personal qualities. Use the word ‘young’ and older people will think they are unable to apply. Define your ideal candidate as ‘mature’ and younger applicants could assume they are excluded. Equally, describing your preferred applicant as ‘active’ might seem innocuous to you, but to a person with a physical disability it can be exclusionary. Just be very aware of the words you use when describing desirable personal characteristics or, if you want to play it safe, avoid them in general.
  • Using gender specific nouns. Words like ‘waiter’ and ‘waitress’, or ‘salesman’ are descriptions people use all the time but are a big no-no in a job advert. So, when you’re specifying the job role, remember to stick to non-gendered titles like ‘waiting staff’ or ‘salesperson’.
  • Making assumptions about potential applicants. Having preconceived ideas about a person’s abilities based on their characteristics can skew the way a job advert is worded. For example, an employer may ask for a ‘native speaker’, under the assumption that they possess superior language skills, but this unfairly excludes non-native speakers who may have equivalent proficiency in the language regardless of their race or nationality. Think about the skills required for the role itself rather than who you assume would possess those skills.

Obviously, there are many more pitfalls to be avoided but the above examples give you an idea of how easy it can be to make a mistake.

Objective justification and occupational requirements

There are certain circumstances where an employer might be able to counter discrimination claims by arguing that they have an objective justification for their actions. To prove this, you would need to demonstrate that your decisions were proportionate and had a legitimate aim.

For example, if a company is recruiting for an ‘experienced’ chief engineer, the level of experience required for the role may indirectly discriminate against younger candidates. However, if the role demands a level of competence that only a longer period of technical experience can produce, the company could argue that their requirements are justified.

In other circumstances, the job role may require the candidate to possess certain protected characteristics as an ‘occupational requirement’. If an employer can show that the role can only be performed by a person with a particular characteristic, it is not discriminatory. e.g. a refuge for women might reasonably require an applicant to be female in order to be able to fulfil their role effectively.

It’s an area in which to tread carefully and be very sure that you have a strong business case to justify your actions.

Ensure compliance with advice from an experienced employment lawyer

As you can see, crafting a job advertisement that doesn’t unfairly discriminate against applicants can be more complicated than you think. If you’re unsure whether your job advertisements or any other element of your recruitment process complies with equality legislation, we’re here to advise you. Our experienced employment law team will go over your recruitment policies and processes with you to ensure your business is both compliant and protected.

Contact your nearest Rowberry Morris office for employment law advice you can trust.

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.