The Equality and Human Rights Commission has updated its guidance for employers on placing job ads, to help ensure such ads are lawful and don’t discriminate. What’s new?
A discriminatory ad is one which restricts jobs (as well as goods, facilities or services) to people with a particular protected characteristic covered by the Equality Act 2010, such as to men or to people of a particular age group. Such ads are unlawful except in very limited circumstances where the Act specifically allows such a restriction if it can be objectively justified. To be objectively justified there must be a legitimate aim for the restriction and the restriction must be a proportionate way of achieving that aim.
You can require a job applicant to have a particular protected characteristic under the Act where having that characteristic is necessary for the role. This is called an “occupational requirement”. The updated guidance now provides greater clarity around this occupational requirement exception. It makes clear that where an occupational requirement relates to the protected characteristic of “sex”, this means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate (GRC). So, an occupational requirement to be a woman cannot include transgender women who have not obtained a GRC, as they don’t have legal status as women under the Act. To give an example, a sex-based occupational requirement that a job applicant is a woman (as is common within specialist support services for women, such as rape counselling) will include women who are recorded female at birth and transgender women who have obtained a GRC, but not transgender women who don’t have a GRC. The guidance notes, however, that the Act also permits an occupational requirement to exclude transgender persons where it’s objectively justified, and this can include those who have obtained a GRC.