Recruitment advertising has been in the spotlight recently after a landmark ruling by the European Court of Justice (ECJ) found that job adverts could amount to direct discrimination.
In the case of Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn, the court found that a job advert by a Belgian company, which stated it did not employ ‘immigrants’ because its clients did not like dealing with them, was tantamount to direct discrimination on the grounds of race.
The ruling overturned the UK position decided in Cardiff Women’s Aid v Hartup in 1984, which held that a job advertisement falls outside the remit of discrimination legislation and that an individual could not bring a claim based on a recruitment advert.
Until now, proceedings could only be brought by the Equality and Human Rights Commission on behalf of individuals but after the ECJ ruling individuals can now bring claims as well.
UK firms clued up
Sandra Wallace, partner and head of the diversity and equality unit at law firm DLA Piper, says that although the Belgian ruling is significant to employers, most UK companies are pretty clued up about racial discrimination already.
“The diversity legislation that has had the most impact in recent years is the age discrimination laws,” she says.
“Most employers used to use age as a benchmark for defining how much experience a candidate had but they’ve had to completely rethink that since the age legislation came in.
“Recruitment advertising has had to become much more detailed, with companies thinking more about what the job actually involves rather than the person or the age of the person they want.”
Darren Wentworth, director of the UK HR division at Robert Walters recruitment firm, is responsible for overseeing all the advertisements for HR jobs. He says that the company completely overhauled its recruitment advertising practices when the age discrimination laws were first introduced on 1 October 2006.
“We had to rule out anything that could be seen as potentially ageist in our ads and processes,” Wentworth explains.
Words that could be regarded as synonymous with age, such as energetic, dynamic, experienced and gravitas, were all banned and any educational references such as ‘recent graduate’ or ‘newly qualified’ were also vetoed.
Dates of birth and any references to age were also taken off CVs before they were passed to clients. “We couldn’t afford to lay ourselves open to discrimination claims,” Wentworth says.
But the age and experience argument is still, he adds, a tricky area to manage.
“With age undoubtedly comes experience and a certain amount of ability. You make mistakes and learn from them at different times during your career.”
Wentworth believes banning some potentially ageist words can be extreme.
“I’ve met people who have worked in HR for 30 years, who I’d definitely describe as dynamic, and I think people can achieve gravitas regardless of how old they are. But we have to play it safe,” he says.
Since the age laws came in, employers have also decided to advertise online to make sure they get all the job applicants’ details, according to Wallace.
“It’s pushed most companies into advertising on the web rather than in newspapers. Applicants can be referred to another web page or form so companies can usually obtain all their details that way,” she says.
Robert Walters, which has 36 offices in 16 countries, has made sure that all its recruitment consultants are trained to write legally compliant job advertisements and advise clients on what could be construed as discriminatory.
The company has an in-house legal council for advice and an HR team to assist with any training needs.
“We still get clients that come to us specifying that they want someone from a certain age group or a particular background, especially within the HR field, but it’s our job to let them know what is and isn’t acceptable and give them the best candidate regardless,” Wentworth says.
He also believes there is a moral obligation to recruit people from a widely diverse pool.
“We have to stand firm as an organisation. If we only recruited people from a certain age range, race or gender, life would be pretty dull. Any changes in legislation have an impact on the recruitment industry and we, as individuals, have to make sure we’re agile enough to adapt to them and move with the times.”
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When discrimination in job advertisements is lawful
- There are a limited set of circumstances when employers can target specific groups with advertising: for instance, if the job has a genuine occupational requirement for someone from a particular community, or if a specific community can be shown to have been under-represented in an area of work.
Source: Equality and Human Rights Commission
Make sure your job ads don’t fall foul of discrimination laws
- Job advertisements include e-mails, direct mail and in-company notices, as well as advertising to the general public in newspapers and on the radio, TV or internet.
- Stating a preference for a man or woman in a job advertisement is unlawful sex discrimination unless the requirements of the particular job mean that it is lawful to employ only a man or a woman. Gender-specific job titles, such as ‘handyman’ or ‘salesgirl’, should therefore be avoided.
- Advertisements should not include age limits, unless these can be objectively justified. Avoid using words and phrases such as ‘young and dynamic’ or ‘mature’. These could result in a complaint of age discrimination since they suggest an employer is looking for applicants from a particular age group.
- It could be discriminatory to restrict the advertisement of a job to a particular religious publication, since potential candidates who belong to other religious or belief groups would be much less likely to have the opportunity to see it.