Dear Auntie,

I’m an HR manager at a medium-sized company.  A job advertisement for a vacancy we had was published last month while I was on holiday. The advert says that the company is looking to recruit an individual with “at least six years’ experience (preferably continuous)” in working in the industry. Although the advertisement has now been withdrawn, it has already been published in a trade journal and I am worried that the company may now be sued. What are the implications of the advert and, bearing in mind that job applicants aren’t our employees anyway, are we exposed to any claims? 

Yours sincerely,

V. Lost (Ms)

 

Dear Ms Lost,

The first point to note is that it is unlawful to discriminate against job applicants just as it is unlawful to discriminate against employees.  This is a point that is sometimes overlooked by employers.  Companies are therefore exposed to claims from job applicants if they have discriminatory recruitment practices (including job advertisements). 

Bearing in mind the number of possible heads of discrimination (currently race, colour, nationality, ethnic or national origin, sex, disability, age, religion or belief, sexual orientation, gender re-assignment, marital or civil partner status and trade union membership) and how widely these have been interpreted by the courts, it is quite easy for the wording of certain job advertisements to be construed as being discriminatory in some way and falling within one or more of those heads.  Employers are therefore advised to take extra care in formulating their adverts.  

Although the wording of the example advertisement above is not directly discriminatory (it does not, for example, state that the company would only employ those over the age of 45), it is arguably discriminatory on grounds of age and, possibly, sex.  The fact that the advertisement specifies a requirement for individuals with “at least six years’” experience invariably means that older applicants are more advantaged than younger applicants since they are more likely to have at least that level of experience.  Further, the fact that six years’ continuous experience is stated to be preferable arguably means that women are being put at a disadvantage because they are more likely to have had a break in employment (to care for children, for example) than their male counterparts.  Unless such statements and requirements can be “objectively justified” (which is difficult to show), the employer in question is likely to be exposed to claims.   

There have been some interesting developments in recent case law surrounding job advertisements.  An employment tribunal held in June this year that a job advertisement stating that a particular teaching role “would suit candidates in the first five years of their career” was indirectly discriminatory on grounds of age since more experienced (and hence older) applicants were put at a disadvantage (Rainbow v Milton Keynes Council 1200104/2007, 2 June 2008).  In that case, the employer tried to justify the wording in its advert by claiming that it had financial constraints and essentially could not afford to employ someone of the claimant’s seniority for the role in question.  However, it did not provide any detailed evidence to show this and did not demonstrate that other types of financial strategy had been taken into account to achieve a similar cost-saving.  The tribunal rejected the employer’s argument because there was a lack of evidence of the cost issue, the employer had not explored other cost saving measures and costs was the sole justification put forward by the emloyer.  The upshot of that case was that if employers are to rely on cost as a defence, they should combine it with other reasons and also provide evidence to support their arguments – a mere assertion of costs as a reason is not good enough.
      
The European Court of Justice (“ECJ”) has recently held that there does not need to be an identifiable victim or complainant for there to be a successful claim of direct discrimination against a company (Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV C-54/07).  The facts of that case were quite extreme.  A director of the Belgian company in question (which specialised in the installation of doors) made a public statement to the Belgian media that the company would not employ Moroccans as its customers did not want immigrants in their homes.  Proceedings were brought by the Belgian equivalent of the Equality and Human Rights Commission in the UK.  The ECJ held that the company’s public statement was direct discrimination contrary to the EU Race Discrimination Directive, even though no individual had brought a claim as a result of it.  The court rejected the argument that there could not be direct discrimination where the employer did not actually act on the discriminatory statement.  The statement had a humiliating and demoralising effect on the people of the ethnic origin in question who would have been interested in applying for the position.  It would also discourage such people from applying and was therefore discriminatory.  In the UK, it is already unlawful to publish advertisements that display an employer’s discriminatory recruitment practices.  However, although this case is likely to have a limited impact in the UK because the Equality and Human Rights Commission does not have the power to bring a claim against employers where there is no identifiable complainant, employers should still be alive to the issue and consider the wording of their job advertisements very carefully.

Below are some tips for employers when preparing job advertisements:

• It is to think very carefully about the requirements of the role being advertised.  Draw up a detailed job description and person specification, focussing on what skills and the employer wants the candidates to demonstrate and why. 

• Keeping a paper trail of your reasoning. This can help to refute any later allegations of discrimination because it shows the company objectively assessing the requirements of the role in question – reasoning which is not tainted by discriminatory factors. 

• If a company does require someone with a certain degree of previous experience, it should consider why that is the case and ensure that it can justify its reasoning (e.g. why six years’ previous experience, rather than five or three?).  It is preferable to require certain types of experience rather than length of experience.

• Have clear requirements and person specifications and apply them methodically to the applications received. Create a database of applicants’ details.  These techniques help to spot potential “serial job applicants” (i.e. people who apply for the same position a number of times using a different name or details in an attempt to unearth some discriminatory treatment and cause embarrassment).

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