Discriminating Material? Legal Liability of Employers for Job Advertisements
| Published date | 01 December 2007 |
| DOI | 10.1177/135822910700900203 |
| Author | Sam Middlemiss |
| Date | 01 December 2007 |
International Journal
of
Discrimination and
the
Law,
2007,
Vol.
9,
pp. 95-111
1358-2291/2007
$10
©
2007
A B Academic Publishers. Printed in Great Britain
DISCRIMINATING
MATERIAL?
LEGAL
LIABILITY
OF
EMPLOYERS
FOR
JOB
ADVERTISEMENTS
SAM MIDDLEMISS
Robert
Gordon
University,
Aberdeen
ABSTRACT
It
is
increasingly being recognised that an impressive
and
relevant presentation
of
job
advertisements, combined with their strategic placing in
an
appropriate
medium
is
key to a successful recruitment campaign. With increasing competition
for certain jobs in this country this is vital although there are inherent dangers for
an
employer who, without considering the risks, simply asks for what he wants in
terms
of
the skills attributes and characteristics
of
an applicant. The employer
could face serious legal consequences where
he
wrongly discriminates against
people
not
meeting his requirements
or
the content
of
the advert does
not
reflect
the reality
of
the situation in the workplace. This could take the form
of
a claim
under the equality legislation
or
a common law action under the law
of
contract
or
tort.
INTRODUCTION
Employers
increasingly have
to
carefully consider
the
steps
they
take
to
employ
someone,
and
in
particular,
how
they
advertise
their
vacancies.
It
is a highly
appropriate
time
to
review
the
law
applying
to
job
advertisements as
the
Employment
Equality
(Age) Regula-
tions
2006/1031 were recently
brought
in
to
deal
with
age discrimina-
tion. Ageist requirements regularly
appear
in
job
advertisements
and
utilising
words
or
images
in
advertisements
that
are
ageist
and
discri-
minatory
is unlawful
and
an
aspect
of
recruitment
which employers
should
avoid.
Also employers will often include
information
in
advertisements
in
an
effort
to
attract
candidates
which is exaggerated,
incorrect
or
false,
and
when
this
happens
they
could
face a legal
action
for
inter
alia:
breach
of
contract
or
negligent misstatement.
There
is a
dearth
of
commentators
covering this issue
in
their
published
work
and
it
is therefore
important
to
consider
the
legal
rules
that
apply
and
when they
might
be
breached.
96
LIABILITY
FOR
JOB
ADVERTISEMENTS UNDER
EQUALITY LAW
Sex
and race discrimination
Under
section
38
ofthe
Sex
Discrimination
Act
and
section 29
of
the
Race
Relations
Act
1976
there
are
very similar rules dealing
with
job
advertisements.
The
definition
of
advertisement which
both
Acts
have
in
common
is:
'Advertisement
includes every
form
of
advertise-
ment
or
notice,
whether
to
the
public
or
not,
and
whether
in
the
newspaper
or
other
publication,
by
television
or
radio,
by
display
of
notices
or
signs, labels, showcards
or
goods,
by
distribution
of
samples, circulars, catalogues, price lists
or
other
material,
by
exhibi-
tion
or
pictures models
or
films,
or
in
any
other
way,
and
references
to
the
publishing
of
advertisements shall be
construed
accordingly'.
1
This
definition
does
not
specifically
mention
advertisements
on
the
internet
or
that
are
provided
using
information
technology gener-
ally,
although
this is a
medium
increasingly being used
by
employers.
However,
the
definition is
not
exhaustive
and
is
broad
enough
to
allow
the
inclusion
of
this
type
of
advertising.
Under
section 29
of
the
RRA
'it
is unlawful
to
publish
or
cause
to
be
published
an
advertisement which
might
reasonably
be
understood
as indicating
an
intention
by
a
person
to
do
an
act
of
discrimination'.
In
Equal Opportunities Commission (
EOC)
v.
C.
M.
Robertson
and
Others,2
one
the
earliest cases
to
brought
under
equality
law
on
this basis,
it
was held
by
an
Industrial
Tribunal
that:
'in determining whether an advertisement shows an intention to
discriminate the advertisement has to be read as a whole according
to what an ordinary reasonable person, without any special
knowledge, would find to be a natural and ordinary meaning
of
the
words used'.
In
other
words
what
would
the
ordinary
man
or
woman
in
the
street
make
of
it?
The
tribunal
sensibly raised
the
further
point
that
the
whole
process
of
recruitment
and
selection
required
the
employer
to
discri-
minate
between
one
candidate
and
another
in
their choice
of
an
employee. However,
problems
arise where
he
directly
or
indirectly
bases his decision
on
discriminatory factors
such
as sex
or
race.
So
in
this case
the
use
of
the
words
in
six different advertisements
of
craftsmen,
handyman
or
ex-policeman,
without
further
qualification,
were
discriminatory
as was a self-confessed
attempt
to
get
round
the
law
by
advertising
the
availability
of
a
job
to
a
bloke
or
blokess.
Alternatively
the
use
of
the
word
manager
was
not
discriminatory
but
advertising
for
a
manageress
would
be. While
both
the
employer
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