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Can Job Adverts breach the Equality Act 2010?
By Michael Nadin – Employment Law Specialist
In a recent job advert (that was quickly deleted) a Lancashire football club sought a new general manager and made it clear that flexible working was not an option.
The advert stated:
“We work hard ….. so again, don’t apply if you are looking for a work-life balance or have to pick up the kids from school twice a week at 3.30.”
This predictably resulted in a social media storm, and although some people seemed to appreciate the honesty in the post, the majority reaction was very negative. In particular the implication that anyone why enjoys a work-life balance or has childcare responsibilities cannot also work hard invoked fury from many in the Twittersphere.
However, setting aside the moral and ethical considerations of taking such a strong stance on flexible working, what are the legal implications of an advert like this?
The football club in question does not appear to have considered the possibility that the terms of a job advert could pose a risk of legal action against them from potential applicants.
It is worth noting that all employees potentially have a legal right to make a flexible working request, but the real risk here stems from the Equality Act (EqA) 2010.
It is widely accepted by Employment Tribunals that women are statistically more likely to be responsible for childcare than men, and are therefore statistically more likely to need flexibility in employment.
Any rule which prevents flexible working could be indirectly discriminatory against women in breach of s19 of the EqA 2010 unless it can be justified as a proportionate means of achieving a legitimate aim.
An individual who applies unsuccessfully for a job may be able to point to a discriminatory advert as evidence that the employer’s failure to offer them the job was unlawful discrimination contrary to section 39(1)(c) of the EqA 2010.
However, section 39 is not limited to those who have actually applied for employment, and in theory a person could claim to have suffered discrimination in the arrangements for recruitment, without actually applying for the job in question (although a person will not succeed in a discrimination claim if they have no intention of applying for or taking the job).
In all likelihood, such a claim would be based on the manner in which the job has been advertised.
Aside from the risk of claims by deterred or unsuccessful applicants, an employer who publishes a discriminatory advert might also face enforcement action from the Equality and Human Rights Commission (EHRC), under powers granted by the Equality Act 2006 (EqA 2006) (as amended by Schedule 26 to the EqA 2010).
Discriminatory advertising would seem to amount to an “unlawful act” for the purposes of the EHRC’s powers: section 24A(3) of the EqA 2006 (inserted by the EqA 2010) states that “an unlawful act includes making arrangements to act in a particular way which would, if applied to an individual, amount to unlawful discrimination”.
Had the football club appreciated the potential ramifications of its actions (both legal and reputational) it seems likely they would have worded the application differently.
This highlights the importance of seeking professional employment law advice well in advance of taking action
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