When you are recruiting for new staff you must be careful not to discriminate against applicants based on a protected characteristic, e.g. age, sex, race, religion etc. In a recent case one pub company fell foul of the law by advertising job vacancies on Facebook and in a way that discriminated against older workers.
Mrs West worked behind the bar at Red House pub in Liverpool that was owned by Funky Owl Pub (Holdings) Ltd. She had worked at the pub for 4 months when the pub closed for refurbishment. She was then 64 years old. During the course of refurbishment, a large poster was put up outside the pub advertising for staff between the ages of 18 and 25. The same advert was used on a recruitment website and was posted on the manager, Mr Coupe’s, personal Facebook page.
When the pub reopened Mrs West asked for more shifts. She raised allegations of ageism but was told by Mr Coupe that she had no chance “of ever working [t]here again”.
Mrs West brought claims of direct and indirect discrimination in relation to the job advert.
The Employment Tribunal held that advertising for staff between the ages of 18 and 25 demonstrated an intention to discriminate against older workers. At 64, Mrs West belonged to this group of older workers. No evidence to support a justification defence was put forward, so the Employment Tribunal concluded that Mrs West had been treated less favourably than others because of her age.
A job advert can show an intention to discriminate.
- You should not refer to a protected characteristic in an advertisement e.g. advertising for a recent graduate or someone with 10 years’ experience could both discriminate on grounds of age. Equally, terms like “barmaid” can discriminate against someone’s sex. Clothing requirements such as a requirement to wear a hairnet in the kitchen could discriminate against someone on religious grounds. You can only use requirements such as these in an advert if you can show that you have a good reason why the job requires it. To avoid discrimination in the advert you should describe what the job requires e.g. use a job description and person specification.
- Consider where you advertise a job. ACAS advise that you advertise on 2 channels e.g. newspaper and job website. If you only post vacancies on social media (e.g. Facebook) then you may indirectly discriminate against a group of people (e.g. older workers) who do not use social media or that site. You need to check that your advert will reach a wide range of people.
- If you pay staff if they introduce people to be recruited, be aware that if this is your main route to recruitment, it may mean a smaller and less diverse pool of applicants. Potentially this creates a bigger risk of only recruiting people who are more like the people you already employ. You are likely to get a wider range of suitable applicants if you advertise the role.
For more information contact Christopher Sing
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.