Last reviewed 30 September 2020

Arguably, one of the hardest things a business will do is recruit new staff. After all, they want to get the right person for the right role, something that can be challenging to get right. That said, while a job advert needs to attract the right people, it must also not in any way be discriminatory. With this in mind, Ben McCarthy, lead researcher and employment law writer at Croner-i, explores the dangers that can arise from certain employment requirements.

Encouraging and facilitating equal opportunities and diversity in employment remains a key issue facing the business world. While there are numerous options for employers to explore in how they can work to achieve this, a significant aspect will always relate to how they go about recruiting, and hiring staff. Adverts with words or phrases in them that could deny opportunities for certain individuals, even unintentionally, can seriously hinder a company’s steps towards workplace equality. It could even result in a costly discrimination claim.

In short, what could be viewed as a seemingly innocent requirement in a job advert could potentially be misconstrued as something much more serious. Such a situation recently arose in a high-profile media story, concerning a salon which had required candidates to be “happy”.

“Happy” salon workers

Alison Birch, the owner of a unisex hair salon, advertised for a new staff member through the Find a Job service, a website for the advertising of new roles. The advert was asking for a part-time hairdresser who was expected to be fully qualified, and have previous experience working in a salon. It also, crucially, specified that only “happy, friendly” stylists should apply.

After the advert was posted, Ms Birch was contacted by Find a Job, who advised her that the advert was discriminatory. The reason given was that the requirement to be “happy” served to discriminate against recruits, as they could have felt they were unable to apply for the job because they did not consider themselves a “happy” person. Ms Birch was also informed that she could be read “rules on discrimination” but it was a “long document”. Following this conversation, Ms Birch refused to alter the wording and demanded instead that Find a Job take the advert off their site. This complaint was later heard by the DWP, which runs the Find a Job service. In response, it has since agreed that the word “happy” was not discriminatory and, as such, have offered to repost the original advert.

While it is clear that Ms Birch did not intend to offend anyone in this situation, and indeed this is why the DWP have re-posted her advert, this situation does remind us of the danger of wording within adverts. Individuals with certain mental health conditions, such as depression or anxiety, may have struggled to remain “happy” all the time. Such a requirement may have not only been off-putting for them at the recruitment stage, but could have made conducting their role much more difficult if they were successful. The potential message from this advert seems to be many miles from what was actually intended. Instead of a lighthearted requirement to be outgoing and willing to chat to customers, it could actually have been taken as “if you can’t be happy all the time, don’t apply”.

Getting job adverts right

So, what can employers learn from this situation and how should they approach this issue? Well, they need to make sure that all information on the advert is relevant. The European Human Rights Commission recommends that job descriptions accurately describe the job in question, to help eliminate discrimination. Care should be taken to ensure that the content of the job description is relevant to the job and that any specifications are necessary to meet actual job requirements.

Some words or phrases would seem to be more obvious than others. For example, asking for a “handyman” could be seen as dismissing any potential female candidates. That said, sometimes this is less obvious. To give another example, jobs which advertise for a “recent graduate” may serve to discriminate against older people, as recent graduates tend to be in their early 20s. There are also job requirements to consider; asking staff to work a 9 to 5, Monday to Friday day may make it more difficult for women to apply, while Sunday working requirements could cause difficulties for individuals from certain religions.

Problems may arise if employers define criteria that are not actually relevant or necessary. Where employers subsequently rely on those criteria when deciding to reject applicants, and where the criteria are not objectively justified, this could discourage appropriately qualified people from applying and/or lead to a risk of discrimination.

Conclusion

Employers need to be aware of the risk of discrimination, that it is present from the recruitment process up until the end of an individual’s employment and that it can arise even when they have no intention for it to do so. To this end, it is vital that they carefully consider words or phrases in a job advert and that they do not unfairly deny the opportunity to some candidates.

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