These guidelines are intended to assist advertisers in complying with the legislation relating to sex, race and disability discrimination. They are not comprehensive and do not purport to provide legal advice relating to particular circumstances.
It is unlawful, except in certain clearly specified circumstances, to advertise for potential employees or contractors to be employed in the UK in a way that indicates or might reasonably be understood as indicating, an intention to discriminate.
The question is whether an 'ordinary, reasonable person with no special knowledge' will think the advertisement is discriminatory. If someone quite reasonably concludes from an advertisement that the advertiser intends to discriminate on the grounds of race, sex or disability, the advertisement is likely to be unlawful, whatever the advertiser's actual intentions.
The Sex Discrimination Act and the Race Relations Act and the Employment Equality (Age) Regulations contain exceptions which include the following. However, to be legal, the text of the advertisement should also make it clear to readers why the exception applies to the job.
It is possible to restrict a job to members of one sex if being of that sex is a genuine occupational qualification for the job but the circumstances where this may apply are very limited. They include;
NB. When a job involves working outside Britain the advertisement may call for someone of a particular nationality but it remains unlawful to stipulate the person's colour, race, or ethnic or national origin.
Both the advertiser and publisher of an unlawfully discriminatory advertisement are liable. Publishers may not be liable if they can show that they reasonably relied on a statement by the advertiser that the advertisement was not unlawful. Advertisers leave themselves open to prosecution if they make false or misleading statements.
When being from a particular age group is a 'genuine occupational requirement' for a job- although the circumstances where this may apply are very limited, for example an acting job;
Where an employer is taking positive action to encourage people of a particular age or age group to take advantage of opportunities because they are underrepresented in the organisation or at certain job levels;
Applicants within 6 months of the 65th birthday are excluded with regards to the terms on which employment is offered.
With regard to the Sex, Race and Disability Discrimination Acts, both the advertiser and publisher of an unlawfully discriminatory advertisement are liable. Publishers may not be liable if they can show that they reasonably relied on a statement by the advertiser that the advertisement was not unlawful. Advertisers leave themselves open to prosecution if they make false or misleading statements. Under the Age Regulations, any third parties who knowingly aid an employer to commit discrimination under the Regulations will be liable. Third parties will not be liable if they can show they reasonably relied on a statement by the employer that the advertisement was not unlawful. Parties leave themselves open to prosecution if they make false or misleading statements.
The Sex Discrimination Act makes it unlawful for an employer to discriminate against an applicant for a job in an establishment in the UK on grounds which include their sex or marital status:
Discrimination may be direct or indirect.
This occurs where someone is treated less favourably on the ground of her/his sex than a person of the opposite sex is or would be treated.
Examples of direct sex discrimination would be
This is where an employer applies a condition, criterion or practice which would apply equally to a person of the opposite sex, but;
For further information visit the Equal Opportunities Commission website at www.eoc.org.uk
The Race Relations Act 1976 makes it unlawful to publish advertisements that discriminate on racial grounds, or to make arrangements for such advertisements. Both publishers and advertisers are legally responsible for ensuring that advertisements are lawful.
Direct discrimination occurs when someone is treated less favourably on racial grounds. Racial grounds include not only grounds of race but also those of colour, nationality, citizenship, and ethnic or national origin.
Indirect discrimination occurs when rules, requirements or conditions that appear to be fair - because they apply equally to everyone - can be shown to put people from a particular racial group at a much greater disadvantage than others, and the rules cannot be objectively justified. A racial group may be defined by race, colour, nationality (including citizenship), or national or ethnic origin. An example of indirect discrimination is requiring that candidates are UK residents.
The CRE's Code of Practice in employment gives advice on how to avoid discrimination when advertising jobs which are covered by one of the exceptions. Organisations and employers can avoid complaints about advertisements that make use of the exceptions to the Race Relations Act by taking a few simple precautions when drafting their advertisements.
Remember: All advertisements that discriminate on racial grounds are unlawful, so you must quote the section of the Race Relations Act that exempts you from this general prohibition.
Make sure that the advertisement does not include the usual equal opportunities statement that all applicants are welcome regardless of racial origins, etc. Plainly, not all racial groups will be acceptable.
More information is available on the CRE's website at www.cre.gov.uk
The Employment Equality (Age) Regulations 2006, to be enforced in October 2006, will make it unlawful for an employer to discriminate against an applicant for a job on grounds based on that applicant's age:
Discrimination may be direct or indirect.
This occurs where someone is treated less favourably on the ground of their age. Consequently the Regulations prohibit job advertisements that contain phrases which could be related to age, for example 'applicants should be 25-35 years of age' or'mature and experienced candidate'. Any minimum and maximum age requirement must be justified by employers. As well as language, advertisers must also be aware of hidden messages that may be present in advertisements such as the pictures used and must also ensure that the advert itself is accessible to a wide audience.
This occurs where a rule, requirement or condition that appears to be fair - because they apply equally to everyone can be shown to put people from a particular age group or of a particular age at a much greater disadvantage than others, and the rules cannot be objectively justified.
For further information see ACAS's guidance for employers a twww.acas.org.uk
The Act says that it is unlawful for an employer to discriminate against a disabled person;
Employers should avoid discrimination in, for example, specifying the job, advertising the job, and the processes of selection, including the location and timing of interviews, assessment techniques, interviewing and selection criteria.
The inclusion of unnecessary or marginal requirements in a job advertisement can lead to discrimination. For example;