Wake-up call – Don't let your copywriter go overboard on job ads
A quirky job add might seem like it will appeal to the right demographic, but step over the line and you could be in hot water. Rebecca Strevens explains why you should avoid words that could be discriminatory
The Problem
Ryanair was recently the subject of an Advertising Standards Authority (ASA) adjudication which upheld complaints that the airline's adverts were "sexually suggestive and likely to cause widespread offence".
Complaints were made that the print advertisements, with the slogan "Red Hot Fares & Crew!!!" above pictures of female cabin crew posing in underwear, were "sexist and objectified women".
So, how do employers avoid discriminating in advertising and recruiting for vacancies?
The Law
Employers need to ensure that they do not discriminate against prospective and existing employees in their approach to advertising and selecting individuals to fill roles.
While the ASA regulates how businesses advertise their products and services to eliminate discriminatory campaigns, employers must also comply with the Equality Act 2012 and the financial consequences of non-compliance can be high.
Under the Act it is unlawful to discriminate against prospective and existing employees on the grounds of any of the nine "protected characteristics": age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
It is unlawful for companies to discriminate against or victimise a person:
â- in relation to the terms of employment offered
â- by not offering them employment.
Discrimination on the grounds of a protected characteristic may be lawful in limited circumstances. This would be where, having regard to the nature or context of the work, having a particular protected characteristic is an occupational requirement of the role.
Expert Advice
Before advertising a vacancy, employers should prepare a detailed job description and person specification to clarify the skills and experience required for the role.
When preparing a job advertisement, employers should avoid using words that could indicate a predetermined bias towards candidates with a particular characteristic.
Inappropriate pictures should also be excluded from any adverts.
Employers are generally prohibited from asking prospective employees about their health or asking them to complete a health questionnaire. Limited exceptions to this prohibition include where it is necessary to enable the company to make reasonable adjustments to the recruitment process (to assist disabled applicants) or if it is necessary to determine whether the candidate can carry out a function which is intrinsic to the work concerned.
Being able to refer to a detailed job description will assist employers in determining whether such questions are necessary, but if there is any doubt then it is best not to ask any questions at all.
When interviewing prospective employees, employers should avoid asking a candidate about their personal life unless the question is directly relevant to the requirements of the role. It is essential that interviewers do not make assumptions about a candidate's personal life or preferences on any discriminatory ground.
Check list
â- Ensure that staff involved in the recruitment process have had equal opportunities training and are familiar with your equal opportunities policy. This training should be regularly updated and repeated.
â- Keep any equal opportunities and diversity monitoring forms that applicants are asked to complete separate from the job application, to avoid any allegations of discrimination.
â- Ensure that each candidate is asked the same questions in interviews to ensure that no applicant is unfairly prejudiced in the recruitment process.
â- Keep written records of the reasons behind decisions being taken in the recruitment process in order that they can be referred to if challenged.
Beware
Compensation for discrimination is uncapped and therefore a company's financial liability in discrimination claims can be high. Discrimination claims can cover loss of earnings and there will be an additional award for injury to feelings, which can be up to £30,000.
CONTACT
Rebecca Strevens is a solicitor at Charles Russell LLP
rebecca.strevens@charlesrussell.co.uk
