In this series, we delve into the XpertHR reference manual to find essential information relating to one of our features. This month’s topic… Attracting suitable candidates
Having defined clearly what type of person your organisation is seeking to recruit, the next stage will be to identify methods of attracting a pool of suitable candidates.
The aim of placing an advertisement should be to attract a sufficient number of candidates, all of whom possess the necessary skills, experience and qualifications to do the job effectively. A poorly or vaguely worded advertisement may result in a large number of applications – many of which will be unsuitable, which will waste valuable time and resources. It is always better to seek to attract a small number of suitable candidates, rather than a large, miscellaneous array of people.
Sex and race discrimination
The Sex Discrimination Act 1975, section 38(1) and the Race Relations Act 1976, section 29(1) both make it unlawful to publish an advertisement that indicates, or might reasonably be interpreted as indicating, an intention to discriminate.
The Sex Discrimination Act 1975, section 82(1) and the Race Relations Act 1976, section 78(1) each define an advertisement as including ‘every form of advertisement, whether to the public or not, and whether in a newspaper or other publication, by television or radio, by display of notices, signs, labels, show-cards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way’.
Employers are thus obliged to adhere to sex and race discrimination legislation irrespective of the medium used for advertising the job. This means making sure that:
- The words used in the advertisement are not sexist, for example waiter or waitress (Sex Discrimination Act 1975, section 38(3)).
- Nothing in the advertisement could be indirectly discriminatory against men or women, or against people from a minority racial group.
- Any pictures used do not create a stereotypical image, for example if only men and no women are in the picture.
- There is no ambiguity or possibility for misinterpretation in the advertisement.
Positive action
Although positive discrimination is unlawful in the UK, certain forms of positive action are lawful. Under the Sex Discrimination Act 1975, section 47 and the Race Relations Act 1976, section 37 it is permissible for employers to take steps to encourage women or men only, or people from a particular racial group only to take advantages for employment if the purpose of such action is to tackle the issue of under-representation of women, men or ethnic minority applicants in a particular field. Similarly, under the Employment Equality (Religion or Belief) Regulations 2003, regulation 25 and the Employment Equality (Sexual Orientation) Regulations 2003, regulation 26 it is lawful to encourage people from a particular religion or belief only or people of a particular sexual orientation only to take up opportunities for employment, provided that the purpose of doing so is to prevent or compensate for disadvantages linked to religion or sexual orientation (as the case may be) suffered by people from the particular group.
Positive action for this purpose could, for example, lawfully include:
- Stating in the advertisement that applications from women are particularly welcome.
- Using types of media for advertising that are likely to be seen by members of a particular racial or religious group, eg specialist or local journals or noticeboards in student halls of residence or community centres.
- Stating in the advertisement that mentoring will be available to job applicants (and existing staff) from under-represented groups.
It is important to remember that, although positive action is permissible under UK law, at the point of selection for employment, the decision as to whom to select must be made without reference to the candidates’ gender, sexual orientation, racial group or religion.
Disability discrimination
When designing advertisements, employers must also take into account the provisions of the Disability Discrimination Act 1995, section 11. The Act applies to all forms of advertising, whether to the public or not, and a candidate rejected for employment on grounds related to disability will have the right to challenge the employer’s decision in an employment tribunal. It will be up to the employer to provide objective justification for its rejection of the disabled candidate, which must be on grounds that are material and substantial.
Further developments
Further changes and additions to anti-discrimination legislation are set to be introduced as a result of the EC Framework Directive for Equal Treatment (2000/78/EC). Changes to the Disability Discrimination Act 1995 are scheduled for October 2004, at which time the Government will have to ensure that the Act as a whole conforms to the provisions in the Directive. New age discrimination legislation is expected in October 2006.
Amendments to the Sex Discrimination Act 1975 to bring the Act in to line with the revised EC Equal Treatment Directive (76/207/EC) are also expected, probably in 2005.
These new anti-discrimination provisions will include a revised definition of indirect discrimination, an express definition of harassment as a specific form of unlawful discrimination and the prohibition of post-employment discrimination. These provisions have already been incorporated into the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003 and the Race Relations Act 1976 as far as discrimination on grounds of race, or ethnic or national origins is concerned.
The prohibition of post-employment discrimination has also already been incorporated into the Sex Discrimination Act 1975.
This is an extract from the Recruitment and Selection portion of the Xpert HR employment law reference manual. Chapter author, Lynda Macdonald
Action point checklist
- Review where the kind of people who are being sought are likely to look for jobs and what newspapers and journals they are likely to read.
- Draft advertisements so they provide an accurate picture of the organisation’s activities, the job duties and level of seniority, and the type of candidate the organisation is seeking.
- Ensure adverts do not contain sexist, racist or ambiguous language and pictures do not create a stereotypical image.
- Where applicants of one sex or sexual orientation or from a minority racial or religious group are under-represented, consider positive action to encourage applications from the under-represented group.
- Refrain from specifying age limits or ranges in job advertisements.
- Ensure any job-related requirements included in an advert are necessary for the performance of the job, and not excessive or overstated.
- Check that any employment agency to be used is one that is likely to be able to fulfil the organisation’s needs.
- Consider using jobcentres to source candidates for semi-skilled jobs, as jobcentres can advertise jobs locally or nationwide using its computer network, conduct the initial screening of applicants and arrange interviews.
- Make job applicants sourced from employment agencies aware of the employer’s identity as soon as possible.
- Do not give instructions to employment agencies to treat men and women, or people from different racial groups, differently.
Questions and answers
Is it lawful for an employer to indicate that a vacancy is aimed at women (or men) if the job is advertised in a women’s (or men’s) magazine?
No. The Sex Discrimination Act 1975, section 38(1) and the Race Relations Act 1976, section 29(1) both make it unlawful to publish an advertisement that may be interpreted as indicating an intention to discriminate. Employers must adhere to sex and race discrimination legislation irrespective of the medium used for advertising the job.
Is it unlawful to include a preferred age range in a job advertisement?
Although at present there is no age discrimination legislation in the UK, the Code of Practice on Age Diversity in Employment recommends that employers should not specify age limits or age ranges in job advertisements. Legislation outlawing age discrimination is set to be introduced in the UK by December 2006, following the adoption of the EC Framework Directive for Equal Treatment (2000/78/EC).
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Is an employer acting unlawfully if it tells a third party (a jobcentre or employment agency) that it would prefer to appoint a man for the job?
Instructing an employment agency or jobcentre to apply such a discriminatory practice would be acting in breach of the Sex Discrimination Act 1975 and unlawful irrespective of whether the instruction was subsequently carried out. Both the employer that gave the instruction and any employment agency that complied with it would be liable. Any instruction to discriminate on grounds of race would similarly be unlawful under the Race Relations Act 1976.
