We are due to start recruiting for a role that is always in high demand. We want to restrict applications to those within easy commutable distance of where they will be working. We are likely to be inundated with applications from candidates who will say they will take the role even if it means relocating or commuting long distances. In reality, most of these will use it as a means to get into the organisation, and will then want to transfer back to where they now live. Can we state on the ad that we will reject anyone who does not meet our location criteria?
In general terms, there is nothing to prevent you requiring job applicants to meet certain legitimate criteria before they will be considered for a role. It is just as legitimate, although less common, to require an applicant to live within an easily commutable distance for good operational reasons as it is, for example, to require certain qualifications or experience.
The greatest risk for employers when designing job advertisements is that they might be considered discriminatory. Thankfully, gone are the days when ads might have used blatant discriminatory terms such as ‘no blacks or women’, but employers must still be wary that their ad might give rise to indirect discrimination. For example, an ad requiring an ‘energetic and dynamic graduate’ might suggest possible age discrimination.
Technically, imposing a geographical restriction could, in certain circumstances, constitute indirect race discrimination. Suppose that the workplace is based in a location in which the population is predominantly white (for example, Chelsea in London) or Asian (let’s say Bradford). A requirement that applicants must live within two miles of Chelsea is likely to mean that people from ethnic minorities would be at a particular disadvantage. Conversely, a requirement that applicants must live within two miles of Bradford is likely to mean that white people would be at a particular disadvantage.
However, even if this were the case, provided that the geographical restriction is a “proportionate way of achieving a legitimate aim” – in other words, it is justified because there is a genuine need for staff to live within an easily commutable distance and the geographical restriction is a sensible and effective way of achieving this – the job ad will not break the laws on racial discrimination as set out in the Race Relations Act 1976.
Philip Davies, associate in the European employment group, Covington & Burling