Britain’s equality watchdog, the Equality and Human Rights Commission (EHRC), has announced the release of updated guidance for placing or publishing advertisements. This revision aims to ensure that such adverts comply with the law and do not discriminate against individuals based on protected characteristics.
Understanding Discriminatory Adverts
A discriminatory advert is one that restricts access to jobs, goods, services, or facilities to individuals with a specific protected characteristic as defined under the Equality Act 2010. Such restrictions are generally unlawful except in extremely limited circumstances where the Equality Act explicitly allows for such exceptions.
Clarifying Occupational Requirements
One of the key updates in the guidance provides greater clarity around ‘occupational requirements’ as stipulated in Schedule 9 of the Equality Act 2010. These provisions allow an employer to require a job applicant or employee to possess a particular protected characteristic if it is essential for the role.
The EHRC has noted that some employers have incorrectly applied these occupational requirement exceptions, especially concerning the protected characteristic of ‘sex.’ The updated guidance specifies that when an occupational requirement pertains to ‘sex,’ it refers to a person’s legal sex as recorded on their birth certificate or Gender Recognition Certificate.
Supporting Compliance and Understanding
The updated guidance is designed to help employers and individuals understand the boundaries of lawful and potentially unlawful and discriminatory adverts. This effort aims to prevent misapplication and ensure that adverts comply with equality laws.
Statement from Baroness Kishwer Falkner
Baroness Kishwer Falkner, Chairwoman of the EHRC, emphasised the importance of this update:
“As Britain’s equality regulator, we have a duty to promote and uphold Britain’s equality laws. We recognise the need for clarity regarding the lawful use of the occupational requirement exemptions set out in Schedule 9 of the Equality Act. So, we have taken action to provide it.
“Those publishing job adverts must be familiar with their obligations under equality law. They can feel confident that our updated guidance will help them to comply with the law.”
EHRC’s Commitment to Enforcement
Employers should be aware that the EHRC will actively uphold the Equality Act. The Commission will assess and take action on any potential misapplication of Schedule 9 provisions brought to their attention on a case-by-case basis.
Key Points of the Updated Guidance
- Examples of Lawful Occupational Requirements: The guidance includes examples such as a Sikh community health advocate and a changing room attendant of the same sex as the facility users.
- Clarification on Sex-Based Requirements: It clarifies that a ‘sex-based’ occupational requirement to be a woman refers to a person’s legal sex as recorded on their birth certificate or Gender Recognition Certificate.
- Advice on Discriminatory Adverts: The guidance advises on what constitutes a discriminatory advert, when it is lawful to restrict a job or service to particular groups, how complaints can be made, and the EHRC’s approach to handling discriminatory adverts.
By adhering to this updated guidance, employers can ensure their adverts are lawful and non-discriminatory, fostering a fair and inclusive workplace for all.
For more detailed information, please visit the EHRC’s website or contact their support team. This update reflects the EHRC’s ongoing commitment to providing clear and practical guidance to promote equality and prevent discrimination in all forms.