Driving away candidates? Advertising an intention to discriminate

8th August 2014

Do you really need to be a man to be handy? Do the young have the monopoly on being dynamic? Is being Scottish a genuine occupational requirement of working as a nanny? Do you need a driving licence to be mobile and willing to travel? The Commission has recently considered a number of complaints regarding the wording of job advertisements which potentially advertise an intention to discriminate across the range of protected characteristics. The most common complaint relates to posts where having a driving licence is advertised as an essential requirement, which may deter, and discriminate against, disabled applicants.

Employers benefit from recruiting from a wide and diverse pool of applicants and section 39 of the Equality Act 2010 ("the Act") provides that they must not discriminate against a person, including in the arrangements they make for deciding who to employ.

Although this article will refer to "employers" throughout, it is also unlawful for employers to instruct another person to discriminate, eg when recruiting through external sources such as agencies, publications or websites. In turn, a person, such as an external recruiter, must not aid a contravention by knowingly helping an employer to advertise an intention to discriminate. [Sections 111 and 112 of the Act and paras 9.25 - 9.30 of the Employment Statutory Code of Practice (“the Code of Practice”]

Direct discrimination

One complaint to the Commission concerned an advert for the post of Commercial Director which stipulated that the candidate had to be aged twenty-six to thirty-two.

Direct discrimination because of age can be objectively justified under the Act if it can be established to be a proportionate means of achieving a legitimate aim, which shall be discussed further below. The very specific age limits in this advertisement suggested that, on the face of it, this requirement was entirely arbitrary and had no legitimate aim.

Discrimination arising from disability and indirect discrimination

The Commission has received a number of complaints about the recruitment of various professionals required to hold a driving licence. In one example a screening question within the on-line application form prevented an applicant without a driving licence from proceeding with the rest of the application. Other examples have commonly listed a driving licence amongst the essential requirements of the job.

Some disabled applicants may be prevented from driving, or may be ineligible for a driving licence as a consequence of a disability, in which case the requirement may act as a deterrent. Whilst the driving licence requirements in question apply to all potential candidates, they may put some disabled candidates at a particular disadvantage. Unless the requirement can be objectively justified, the practice may amount to discrimination arising from disability or indirect discrimination. The requirement may be seen as indicative that the employer is unwilling to make reasonable adjustments for disabled people.

Objective justification

Three types of discrimination can be objectively justified in some circumstances; direct age discrimination, all forms of indirect discrimination and discrimination arising from disability. Paragraph 4.27 of the Code of Practice suggests approaching the legal test of justification in two stages, asking firstly, is the aim of the provision, criterion or practice legitimate ie is it legal and non- discriminatory, representing a real, objective consideration? If so, is the means of achieving the legitimate aim proportionate; is it appropriate and necessary in all circumstances?

In an Employment Tribunal, it would be for the employer to justify the provision, criterion or practice and to produce evidence to support the justification. An example of what this means in practice and the possible evidence which may be required to support the objective justification can be found in case of Wolf v Stadt Frankfurt am Main [2010] IRLR 244. The case was taken to the European Court of Justice under Article 4(1) of the Framework Employment Equality Directive 2000/78, which has provisions similar to those in the Equality Act. Limitation of recruitment to intermediate career posts in the fire service to the under thirties was held to be objectively justifiable as a genuine occupational requirement in the face of robust evidence that respiratory capacity, musculature and endurance diminish with age. The Court held that recruitment of over -thirties would limit the pool of fire fighters who could carry out the most physical tasks required for a functioning fire service.

Duty to make reasonable adjustments and pre-health enquiries

Employers also have a duty to make reasonable adjustments for disabled people, in order to eliminate barriers. Employers may attract a broader pool of candidates by expressing commitment to making reasonable adjustments within recruitment adverts. Careful scrutiny should be given to screening questions relating to driving as pre-health enquiries are only permissible in the circumstances prescribed under section 60 of the Act, which include establishing whether reasonable adjustments will be required to enable an applicant to undergo assessment.

Working within this legal framework, careful thought should be given to whether a driving licence is an essential requirement that can be objectively justified, or whether the real requirement is to be mobile and willing to travel. Employers should consider matters such as whether it is intrinsic to the post or rather occasional or marginal and how often travel will be required. Are there alternatives such as public transport and taxis? In multi-occupancy posts how many of the job holders actually need to be able to drive? In the majority of cases referred to the Commission, the employer has accepted on reflection that the essential requirement was to be mobile, or willing to travel, as opposed to a requirement to hold a driving licence.

Exceptions: occupational requirements

A further complaint to the Commission involved an employer who sought a male photographer aged twenty-five to mid-thirties, required for a dramatic performance. This involved potential discrimination on the grounds of sex and age.

Schedule 9 (part 1) of the Act provides that in certain circumstances it is lawful for an employer to apply a requirement to have a particular protected characteristic where, having regard to the nature or context of the work; there is an occupational requirement, the application of the requirement is a proportionate means of achieving a legitimate aim and the applicant does not meet the requirement, or (except in the case of sex) the employer has reasonable grounds for not being satisfied that the person meets the requirement.

An ‘occupational requirement' should be interpreted restrictively to ensure that employers do not discriminate in relation to other protected characteristics. The requirement must not be sham or pretext and there must be a link between the requirement and the job. [Code of Practice para 13.1 - 13.3]

The explanatory notes to the Act suggest that schedule 9 could apply where there is the need for authenticity in acting roles, giving the example of seeking a black man to play Othello. Whilst the Commission was satisfied that no discrimination had occurred, the employer was advised that the wording of the advert for the male photographer aged twenty-five to mid-thirties was ambiguous as it did not explain that the photographer was to form part of the performance as opposed to taking photographs of the performance, and there was no specific reference to the schedule 9 exceptions.

Further guidance on advertising for someone with a particular protected characteristic and an example form of words can be found at paragraph 16.27 of the Code of Practice.

Positive action

The Commission has also received complaints and queries about positive action in recruitment advertising. One such issue arose in the context of recruitment for an internship where information for prospective applicants included express “diversity preferences” and a “target of recruiting three people who are either disabled or from black and ethnic minority backgrounds.”

Article 27 of the United Nations Convention on the Rights of Persons with Disabilities prohibits discrimination on the basis of disability with regards to all forms of employment including conditions of recruitment. States Parties shall safeguard and promote the realisation of the right to work by employing disabled people in the public sector and promoting employment of disabled people in the private sector through policies and measures which can include affirmative action and incentives.

This is borne out in the asymmetrical nature of section 13 (3) which allows for more favourable treatment of disabled people only. An employer could therefore lawfully advertise a policy of interviewing all disabled candidates who meet the minimum selection criteria.

Where participation in a particular role or profession is particularly low amongst people with other protected characteristics, there may also be value in using positive action to promote equality. There are various EU law instruments which allow positive action such as Article 157 (4) of the Treaty on Functioning of the European Union which permits positive measures in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Positive action differs from positive discrimination, which is unlawful and EU law has consistently made this distinction clear. Article 3 of the Equal Treatment Directive (recast) allows for positive action measures to ensure full equality in practice between men and women in working life, whilst Article 14 clarifies that there shall be no discrimination on the grounds of sex in relation to conditions for access to employment, including selection criteria and recruitment conditions.

A fairly consistent line of caselaw from the CJEU has held that granting preference to a member of the under-represented sex over a competitor of the opposite sex is only lawful where candidates are of equal merit and all candidates are subject to an objective assessment that is not designed to favour one sex over the other. [See Helmut Marshall v Land Nordrhein Westfalen, Germany 1997, Badeck and Others [2000] E.C.R. Case C-407/98 and Abrahamsson and Anderson [2000] E.C.R. I-5539]

This is reflected in the Equality Act 2010 where positive action in recruitment may be permitted in specific circumstances. The starting point for employers should be that action taken that does not disadvantage those from another protected group will normally be lawful. The Code of Practice at paragraph 12.5 gives the example of placing a job advertisement in a magazine with a largely lesbian and gay readership as well as in a national newspaper.

Where the employer reasonably thinks that people who share a protected characteristic; suffer a disadvantage connected to that characteristic, have needs that are different from the needs of people who do not share the characteristic, or that participation in an activity (including employment or training) is disproportionately low, the employer may wish to consider formal positive action measures in terms of section 158.

In these prescribed circumstances the employer may take proportionate action to meet stated aims, being; action to remedy disadvantage, action to meet needs or action to encourage participation in activities. Each is discussed in depth at paras 12.16- 12.24 of the Code of Practice. The Code provides some examples of permissible actions which may be of relevance in the context of recruitment advertising, including making a statement in advertisements that the employer welcomes applications from a targeted group [para 12.17].

Returning to the internship scenario, the organisation was able to demonstrate to the Commission that they had considered research and evidence which highlighted disproportionately low representation of disabled people and people from ethnic minority backgrounds within their sector. Therefore the aim they sought to achieve was to increase participation from these protected groups. The Commission was assured that whilst information about disability and race was collected for monitoring purposes, it had been separated and had not been taken into account in the short-listing process and that only in the event of a tie-break, would the disability component alone be taken into account.

The tie-break provision is to be found in section 159 of the Act and allows an employer to treat one candidate more favourably because that candidate has a protected characteristic but only where an employer reasonably thinks that people who share a protected characteristic suffer a disadvantage connected to the characteristic or that participation in an activity by people sharing a protected characteristic is disproportionately low.

It is clear from the Act and Explanatory Notes that use of the tie-break provision requires three criteria to be met. Firstly the candidates must be of equal merit for the post or promotion so the tie-break provision could not be used to favour a less qualified candidate. This highlights the importance of using objective selection criteria. Secondly there must not be a policy of treating people who share the protected characteristic more favourably. This is to ensure that each case is taken on its merits. Finally, treating the candidate more favourably must be a proportionate means of achieving the aims specified by section 159; of encouraging people who share the protected characteristic to overcome or minimise the disadvantage or to participate in the activity.

Overall, the Commission was satisfied that a tie-break situation had not occurred during the internship recruitment process and there was no reason to suspect the information on race had been taken into account. The Commission suggested however that the information provided could be misleading and off-putting to some candidates and recommended that for future internship programmes, the organisation should provide a brief explanation to potential candidates to clarify that they are using positive action measures to address the under-representation of specific groups and promote equality but that decisions will be taken on merit and not ethnicity.

Lessons from the Employment Tribunal

The importance of having in place proper policies and procedures to scrutinise recruitment advertisements is highlighted in some interesting cases from the Employment Tribunal.

In a pre-2010 Act case from the Employment Tribunal; Montgomery v Sellar Property Group and Turpin (2008) ET/2201918/08, a direct age discrimination claim arose from an advert for a “dynamic young accountant”. Whilst the claim was not upheld the tribunal considered the explanation that the advert had been drafted using wording replicated from a six-year old advert, to be indicative of “a wholly reckless attitude towards the Company's employment obligations.” The tribunal was critical of the employer, suggesting they “must realise that their approach... was at best inappropriate and at worst inept”, before warning that if they do not “alter their attitudes and introduce proper policies it will only be a matter of time before the Company finds itself before a Tribunal again.”

Adverts may also be used as evidence of a discriminatory dismissal. In Hayzelden v Williams (6 Oct 2005; ET/1100217/05 and ET/1100218/05), another pre-2010 Act case, Mr and Mrs Hayzelden were dismissed from their posts as managers of a guest house following Mrs Hayzelden’s announcement that she was pregnant. A subsequent advert for “a couple with no children” was successfully used as evidence in support of Mrs Hayzelden’s sex discrimination claim.

Most recently, in Bevan v Bridgend County Borough Council [2014] EqLR 481, the Employment Tribunal made a finding of indirect discrimination where the claimant had travel phobia as a result of a previous road traffic accident. When her normal place of work closed she required to travel ten miles to a new site. After just over two weeks, her travel anxiety resulted in her being off sick and she was dismissed a year later. Shortly prior to her dismissal she had been referred to suitable vacancies close to her home, but was deterred from applying as the job specification listed a full driving licence as an essential requirement. The tribunal noted that the driving licence was desirable rather than essential as other staff could have taken on the driving duties as they arose. The tribunal held that, “the disproportionate nature of the provision, criteria or practice taints the dismissal as a whole because, if it had not been imposed, it is clear that the Claimant would have applied for one of the alternative positions and that she would have been awarded one of them.” The Tribunal found that the managers had not read the material sent to the claimant and had not made clear their willingness to waive the driving licence requirement, a finding which resulted in the employer being held 80 % responsible for the fact that the claimant’s dismissal was tainted by indirect discrimination.

Positive response

The Commission has generally received a positive response to communications with employers and recruitment agencies regarding discriminatory adverts. Engagement has resulted in positions being re-advertised, training being given to recruiting managers and more robust practices and procedures being put in place to ensure that advertisements are thoroughly scrutinised before publication.

Further reading

Further guidance on this area can be found in Chapter 16 of the Equality Act 2010 Employment Statutory Code of Practice in general, and the specific guidance on the content of job advertisements at paragraphs 16.23 – 16.31 available at:

//www.equalityhumanrights.com/sites/default/files/documents/EqualityAct/employercode.pdf

Further Guidance on Positive Action including assessing equal merit, can be found in the Supplement to the Employment Statutory Code of Practice at pages 8 – 10:

//www.equalityhumanrights.com/sites/default/files/publication_additional/Supplement%20to%20the%20employment%20CofP%2007-05-14.pdf

Readers may also be interested in the new Equality and Human Rights Commission Guide on Appointment to Boards and Equality Law available at:

//www.equalityhumanrights.com/publication/appointments-boards-and-equality-law

This item was published on 30 July 2014 on the web site - http://www.equalityhumanrights.com/