Recruitment roulette? Don’t take the risk
It may come as a surprise to some, but a person who has not even applied for a job can theoretically bring a discrimination claim in respect of the employer’s recruitment advertisement. Such a claim would be based on the content of the advert or a statement made by the employer in response to an enquiry.
Employers need to carefully consider their job ads to ensure that the language used does not put off any protected groups from applying for the role, nor should the requirements prevent any protected groups from being able to do it. For example, advertising for a ‘young and energetic’ individual could amount to age and/or disability discrimination. Advertising for a ‘waitress’ or ‘salesman’ may amount to sex discrimination.
That said, where there is a necessary occupational requirement, employers can justify what would otherwise be discriminatory criteria. For example, a firefighter (not fireman!) needs to be physically fit, so when advertising for one this requirement can be justified. However, despite the occupational requirement justification, employers should be aware of their obligation to make reasonable adjustments to accommodate disabilities.
When advertising a role, employers should not take a risk, but should carefully consider the content of the job advert. Draw up a detailed written job description, focusing on the skills and experience required for the vacancy. Describe the skills and qualifications that are considered necessary or desirable in a candidate, in order to perform all the duties in the job description. Consult your equal opportunities policy for guidance, and do not include irrelevant criteria. If you think that a criterion which, on the face of it, looks discriminatory criterion, is in fact an occupational requirement, you should seek advice.
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Partner Matthew Clayton is head of our employment law team. He acts for both national and multi-national clients. Leading legal directory Chambers & partners says “clients appreciate his down to-earth, practical and common-sense approach”.We're here to help