Business Law & Compliance

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Legal requirements: Things to consider when making recruitment ads

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Recruitment advertising has had to become much more detailed, with companies thinking about what the job actually involves rather than the person or the age of the person they want.

This means that you need to consider your words carefully. It’s a tricky area as there isn’t a list of banned words that can be used as a guide, instead you need to use your own discretion.

In the Equality Act Codes of Practice, it says: “Advertisements must not include any wording that suggests the employer may directly discriminate by asking for people with a certain protected characteristic.” Thus phrases such as ‘recent graduate’, ‘young and fresh’, ‘mature person’ or ‘highly experienced’, all inadvertently discriminate against someone. This includes job titles such as ‘handyman’ or ‘salesgirl’. Under the same Act, it would also be unlawful to ask for a young candidate in the belief that they will be ‘hungry’ and ‘dynamic’, and so perform better.

So it becomes preferable to ask for certain types of experience rather than a length of time. After all, how can you justify wanting ‘six years’ worth of experience? Why can’t it be four years, or even two?

Take the Rainbow vs Milton Keynes Council court battle of 2007 as a case in point. The row was sparked due to a teaching advert stating that the role “would suit candidates in the first five years of their career”. This indirectly warned older applicants that they would be at a disadvantage. Of course, the employer justified his wording by claiming that the company had financial constraints and would not be able to afford someone of senior position. The tribunal rejected said argument due to the fact that no evidence of a cost-saving nature could be displayed.

Keep a paper trail of what skills you want candidates to demonstrate and the reasons why. This will be vital in future allegations and shows that the company has thoroughly assessed the requirements of the role without the involvement of any discriminating factors.

But it was due to the ‘Centrum voor gelijkheid van kansen en voor racismebestrijding vs Firma Feryn’ case of 2007 that the European Court of Justice (ECJ) ruled that there didn’t need to be an “identifiable victim or complainant for there to be a successful claim of direct discrimination against a company”. A Belgian company stated that they would never hire immigrants because their clients didn’t like dealing with them. So the Belgian equivalent of the UK’s Human Rights Commission filed a claim that the statement defied the EU Race Discrimination Directive, even though no individual had brought a claim as a result of it. It was also due to this trial that ECJ ruled that individuals could bring claims as well.

Although the situation is an extreme one and the Human Rights Commission might not have have the power to raise a claim against employers where there is no direct victim, it shows exactly how careful you need to be – not to mention that the company gained an increasingly bad reputation from it.

Even where language is an important part of the role, make sure to state that someone must be able to converse in the language rather than being from that country.

Also take into account where you post your ad. For example, even if you carefully select your words in order to adhere to recruitment law, all is for naught if you restrict the ad of a job to certain publications, such as only men’s magazines.

To play it safe, never state that adjustments will be made for disabled people, don’t imply that you’d prefer single applicants, if a qualification is needed then don’t restrict it to the UK, don’t factor in length of residence and try to avoid the obvious stereotypes.

The only exception to this rule is if there’s a legitimate reason, such as cleaning toilets – a gender-specific environment. People under 18 won’t be able to sell alcohol and you’ll presumably need a male to play the part of Santa in your hopes to draw kids and their parents to the mall.

You also need to ensure that the advertised role complies with the EU ‘working time directive’. This mean that you’re not allowed to offer a rate of pay that doesn’t meet the minimum legal requirement. So advertising a job with a salary of £2 an hour would be illegal, as would telling people they are expected to work more than six hours

In other words, any job advert should provide a true and fair job description that includes whether qualifications are required, if a reference is needed, salary amount, the benefits offered, duties of the role and location of the company – to name a few.

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Related: How to write a great job advert

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