New Guidelines on Discriminatory Advertisements

Posted on: September 19th, 2016

Recruitment agencies will of course be aware of the importance of ensuring that any advertisements they place, whether on their own behalf or on behalf of clients, must not be discriminatory.

In March of this year, the The Equality & Human Rights Commission issued new guidelines on discriminatory advertisements after it received over 100 complaints about such advertisements in the previous year, including complaints about the following wording:

  • Requests for a “Saturday boy” and a “part-time shot girl”;
  • “Those aged over 45 need not apply”; and
  • A request for the supply of only homosexual applicants to work as extras in a TV programme featuring a Gay Pride story which was sent to casting agencies

All of which are quite clearly discriminatory, but what about advertisements which state that applicants must have a certain number of years’ experience or a degree? Often these can be genuine requirements of the job; however, they can give rise to complaints of discrimination.

Such loosely worded or indeed ill-advised wording in advertisements has been exploited by some individuals to claim compensation, but such exploitation has been curtailed by  a recent European case. .

In Kratzer v R+V Allgemeine Versicherung AG (RAV AG)  the European Court of Justice decided that a person who makes an application for employment solely with a view to claiming compensation for discrimination cannot rely upon the EU laws prohibiting discrimination.

RAV AG advertised trainee positions for legal graduates. Applicants were required to possess a good university degree in law, as well as relevant practical vocational experience.  In addition, graduates were required to have passed the state examinations and to have either taken an employment law option or have some medical law knowledge. Mr Kratzer, a lawyer and former manager with an insurance company, applied for one of the legal trainee positions. When RAV AG rejected his application, Mr Kratzer complained of age discrimination and demanded compensation. RAV AG then invited Mr Kratzer to an interview with its head of human resources.  Mr Kratzer declined the invitation, suggesting that his future with RAV AG should only be discussed once his compensation claim had been satisfied.

The European Court concluded that as Mr Kratzer’s goal was not obtaining employment with RAV AG but instead to be awarded compensation this amounted to an abuse of process and he had not suffered damage of a sort the laws prohibiting discrimination are designed to prevent.

Whilst it is of course important for all recruiters to remember that any advertisement which indicates that the job is restricted to certain people because of a protected characteristic is likely to be unlawful, unless it can be justified, this European case gives some comfort that you won’t be held hostage by aggrieved individuals looking for a quick buck.

For further information please contact Holly Cudbill, Employment Associate Solicitor in our specialist Recruitment sector team.