Advertisements (Discriminatory)
Key points
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A job advertisement that indicates (or could be construed as indicating) an intention to discriminate against would-be job applicants on grounds of sex, marital status, gender reassignment, colour, race, nationality or national or ethnic origins, or on grounds of disability, is unlawful by virtue of section 38 of the Sex Discrimination Act 1975, section 29 of the Race Relations Act 1976, and section 11 of the Disability Discrimination Act 1995.
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Proceedings in such cases will ordinarily be brought by the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission (either of their own initiative or in response to a complaint from a member of the public).
Disability Discrimination Act 1995
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If a job advertisement suggests an intention to discriminate against disabled persons, a disabled job applicant who responds to that advertisement and is either denied an interview or is refused (or not offered) the employment because of his disability, may complain to an employment tribunal and will be awarded compensation if his complaint is upheld. Furthermore, the publisher of the offending advertisement, as well as the person who inserted it, is liable to be fined - unless the publisher can show in his defence that he published the advertisement in reliance on a statement by the advertiser that it would not be unlawful to do so, and that it was reasonable for him to rely on that statement.
Note The Disability Rights Commission (DRC), which has powers similar to those available to the Equal Opportunities Commission (EOC) and the Commission for Racial Equality (CRE) may caution any person (employer, employment agency, or publisher) who publishes a discriminatory advertisement that he (or she) is liable to be served with a non-discrimination notice unless he can satisfy the Commission that no discrimination was intended or occurred.
Sex Discrimination Act 1975
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Section 38 (3) of the 1975 Act cautions that the use of a job title with a gender-specific connotation (such as 'waiter', 'salesgirl', 'postman' or 'stewardess') will be taken to indicate an intention to discriminate unless the advertisement in which that title appears clearly invites applications from persons of either sex. Incidentally, there is no law that requires an employer to use terms such as 'manageress' or 'chair' or other convoluted (or 'politically correct') versions of such traditional job titles. But giving undue prominence to a job title such as 'Air Stewardess' or publishing an advertisement for the more politically- acceptable 'Flight Attendant' in a woman's magazine (but in no other publication) could be construed as overtly discriminatory - notwithstanding a disclaimer to the effect that the vacancy is open to persons of either sex.
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However, there are exceptions to this rule. An employer may decline to employ a man, woman or gender reassignee in a particular job if the sex of the successful applicant is a genuine occupational qualification (or, in the case of a gender reassignee, a supplementary genuine occupational qualification) for that job. Furthermore, there are some industrial processes and occupations in which the employment of women is prohibited by health and safety regulations - as to the latter, please turn to the sections titled Sex discrimination and Women and young persons, employment of, elsewhere in this handbook.
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To summarise: a job may be restricted to persons of a particular sex:
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if it is likely to involve physical contact with women/men in circumstances where those women or men might reasonably object to its being carried out by a man/woman;
Note Employers should be careful not to interpret sub-paragraph (a) or, for that matter, (b) too literally. In Etam plc v Rowan [1989] IRLR 150, an employer was held to have discriminated against a man on grounds of sex when she refused to employ him to sell women's lingerie. In a not dissimilar case, that of Wylie v Dee Co. [1978] IRLR 103, a woman was refused a job as sales assistant with a firm of gentlemen's outfitters because her duties would involve taking a man's inside leg measurements. The tribunal held that there was more to working in a menswear store than measuring a man for a pair of trousers. Should a customer object to being attended to by a woman in this way, there was nothing to prevent her seeking help from one of her male colleagues.
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if the holder of the job is likely to do her work in circumstances where men might reasonably object to the presence of a woman because they are in a state of undress or are using sanitary facilities (and vice versa);
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if, in the case of a person who intends to undergo, is undergoing or has undergone gender reassignment, the job in question would involve the holder being liable to be called upon to perform intimate physical searches (pursuant to statutory powers);
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if, because of the nature or location of the employer's establishment, it would be impracticable for the holder of the job to live other than in dormitories (or similar) occupied, or normally occupied, by persons of the opposite sex - if the accommodation in question is not equipped with separate sleeping arrangements, washrooms or toilets - but only for so long as it remains unreasonable to expect the employer to provide separate facilities for women (or men);
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if, in a situation similar to that described in (d) above, other employees sharing such accommodation and facilities might reasonably object (in the interests of preserving decency and privacy) to the presence of a person who intends to undergo, or is undergoing, gender reassignment - always provided that it would be unreasonable to expect the employer either to equip those premises with suitable accommodation or to make alternative arrangements;
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if, on health and safety grounds, the job cannot lawfully be offered to a woman of whatever age, or to a woman of reproductive capacity, or to one who is either pregnant or breastfeeding or has recently given birth (eg, in work involving exposure to ionising radiations or to lead or lead compounds)(but see the Note on page 507);
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if the job needs to be filled by a man because it is likely to involve work outside the United Kingdom in countries (eg, certain Middle Eastern countries) whose laws and customs are such that the work could not (or could not effectively) be carried out by a woman;
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if the job is one of two intended to be filled by a married couple (eg, caretaker and cook) sharing accommodation provided by the employer on the employer's premises.
There are similar exceptions in relation to jobs in hospitals, prisons, and other establishments for persons requiring special care, supervision or attention; childcare jobs; and jobs that provide individuals with personal services promoting their welfare or education.
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Being a man or a woman is also a genuine occupational qualification if the job in question calls for a man (or a woman) for reasons of physiology (eg, fashion model, club hostess) or authenticity (eg, in dramatic performances and other forms of entertainment). However, a job applicant's supposed physical strength or stamina may not be used as a basis for refusing to entertain applications from women (for instance, for work as a builder 's labourer). If there is to be a test of strength or stamina, all job applicants (male as well as female) should be invited to submit to that same test.
Case Law Cases decided in this area include that of Roadburg v Lothian Regional Council [1976] IRLR 283 when it was held that an existing imbalance of the sexes in a team of voluntary services officers was not a reason sufficient to justify a refusal to recruit a woman to that team; and that of Batisha v Say & Longleat Enterprises [1976] 19 man. Law 23, when it was held that unlawful discrimination occurred when a woman was denied employment as a cave guide.
If an employer instructs one of his subordinates (eg, a personnel manager or factory foreman) to commit an unlawful discriminatory act, he (or she) is guilty of an offence and liable to be proceeded against by the Equal Opportunities Commission.
Race Relations Act 1976
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An employer is at liberty to discriminate against job applicants on racial grounds if he (or she) can prove that being of a particular racial, national or ethnic group is a genuine occupational qualification for the vacancy in question. Such an exception is permissible:
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if the job requires participation in a dramatic performance or other entertainment in a capacity for which a person of a particular racial group is required for reasons of authenticity;
Note In this context, the expression racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group in which he or she falls (section 3(1), 1976 Act).
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if the job involves participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular racial group is required for reasons of authenticity;
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if the job involves employment in a place (such as a Chinese restaurant) where food or drink is (whether for payment or not) provided to and consumed by members of the public or a section of the public in a particular setting for which, in that job, a person of a particular racial group is required for reasons of authenticity;
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if the intended occupant of the job will be required to provide persons of the same racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group.
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A job advertisement will be deemed unlawful if it imposes restrictions or requirements that (albeit unintentionally) effectively discriminate against persons on grounds of colour, race, nationality, or ethnic or national origins. An example of this would be an advertisement that requires candidates to possess qualifications gained entirely (or available only) in the United Kingdom. Another would be an advertisement lodged in a newspaper or journal whose circulation is known to be restricted to persons from a particular racial group.
Case Law In Hussein v Saints Complete House Furnishers [1979] IRLR 337, a small firm of household furnishers in Liverpool declined to recruit job applicants from postal districts 7 and 8 because persons previously recruited from those areas tended to bring with them, or attract, unemployed friends of their own age who were in the habit of loitering about the front of the shop. The Tribunal found that, although the employer had not intended to discriminate against the complainant, his exclusion of candidates from postal districts 7 and 8 effectively denied job opportunities to some 50 per cent of the black community in Merseyside. The firm's recruitment policy was indirectly discriminatory and, therefore, unlawful.
Enforcement
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Job advertisements that are perceived to be discriminatory on grounds of sex, race or disability will be dealt with by the Equal Opportunities Commission (EOC), or the Commission for Racial Equality (CRE) or the Disability Rights Commission (DRC). Any one of those bodies may serve notice on the offending employer or newspaper proprietor that he (or she) will be issued with a Non- Discrimination Notice unless able to satisfy the Commission (within the period specified in the notice) that no discrimination was intended or occurred.
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A Non-Discrimination Notice enjoins the employer who inserted (and/or newspaper proprietor who published) the offending advertisement to end his (or her) unlawful discriminatory practices and to furnish evidence of compliance. The employer who repeats the offence within a period of five years is likely to be taken to court and served with an injunction that is enforceable by committal for contempt.
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Although a member of the public cannot bring legal proceedings against an employer (or newspaper proprietor) in respect of a discriminatory advertisement, a job applicant denied an interview or an offer of employment on grounds of sex, race or disability (perhaps as a consequence of that same job advertisement) may present a complaint of unlawful discrimination to an employment tribunal - as to which, see Racial discrimination and Sex discrimination elsewhere in this handbook. See also Access to employment and Disabled persons.
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