A discriminatory advert is one which restricts jobs, goods, services or facilities to people with a protected characteristic covered by the Equality Act 2010. They are unlawful except in very limited circumstances where the Equality Act specifically allows such a restriction.
The refreshed guidance provides greater clarity around ‘occupational requirements’, under Schedule 9 of the Equality Act 2010, where an employer can require a job applicant or employee to have a particular protected characteristic if it is necessary for the role.
The EHRC is aware of evidence that some employers have incorrectly applied occupational requirement exceptions. There appears to be a particular lack of clarity about the law where the protected characteristic is ‘sex’.
The updated guidance makes clear that where an occupational requirement relates to ‘sex’, the law says this means a person’s legal sex as recorded on their birth certificate or Gender Recognition Certificate.
This guidance will support employers and individuals to understand where adverts are lawful and where they are potentially unlawful and discriminatory.
Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:
“As Britain’s equality regulator, we have a duty to promote and uphold Britain’s equality laws.
“We recognise the need for clarity regarding the lawful use of the occupational requirement exemptions set out in Schedule 9 of the Equality Act. So, we have taken action to provide it.
“Those publishing job adverts must be familiar with their obligations under equality law. They can feel confident that our updated guidance will help them to comply with the law.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
