Britain’s equality watchdog, the Equality and Human Rights Commission, has today updated its guidance for those placing or publishing advertisements, to help them ensure such adverts are lawful and do not discriminate. 

A discriminatory advert is one which restricts jobs, goods, services or facilities to people with a protected characteristic covered by the Equality Act 2010. They are unlawful except in very limited circumstances where the Equality Act specifically allows such a restriction. 

The refreshed guidance provides greater clarity around ‘occupational requirements’, under Schedule 9 of the Equality Act 2010, where an employer can require a job applicant or employee to have a particular protected characteristic if it is necessary for the role.

The EHRC is aware of evidence that some employers have incorrectly applied occupational requirement exceptions. There appears to be a particular lack of clarity about the law where the protected characteristic is ‘sex’. 

The updated guidance makes clear that where an occupational requirement relates to ‘sex’, the law says this means a person’s legal sex as recorded on their birth certificate or Gender Recognition Certificate.

This guidance will support employers and individuals to understand where adverts are lawful and where they are potentially unlawful and discriminatory.

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:

1. The EHRC’s review of the previous guidance on discriminatory adverts concluded that some areas of the document relating to ‘occupational requirement’ exemptions required updating to be legally correct. 
2. The points covered in the updated guidance include an example of a lawful occupational requirement under Schedule 9 of the Equality Act 2010 (a Sikh community health advocate); an example of objective justification where an occupational requirement applies (a changing room attendant of the same sex as those using the facilities); and clarification that a ‘sex-based’ occupational requirement to be a woman under Schedule 9 refers to a person’s legal sex as recorded on their birth certificate or Gender Recognition Certificate and cannot include transgender women who have not obtained a gender recognition certificate, as they do not have legal status as women under the Equality Act 2010.
3. The guidance advises on what a discriminatory advert is, when it is lawful to restrict a job or service to particular groups, how a complaint can be made and the EHRC’s approach to discriminatory adverts.