New Guidelines on Discriminatory Advertisements

Posted on: March 8th, 2016

The Equality & Human Rights Commission has issued new guidelines on discriminatory advertisements, although to hear the way it’s being reported, you’d think that life as we know it is coming to an end.

On Friday 18 April 1930 the 6:30 BBC news bulletin began and the presenter announced “Good evening. Today is Good Friday. There is no news.” Piano music was then played for the remainder of the bulletin.

In these days of competing news television channels, 24 hour news coverage and just about every newspaper carried around on the phone in your pocket, it’s impossible to imagine a situation where there was simply no news.

That, it seems to me, is the only possible explanation for a news story doing the rounds over the weekend and early this week.

The Daily Mail ran a piece on Sunday with the headline “Barmaids, paperboys and handymen are barred” and the BBC Breakfast on Monday followed suit with the slightly more punning “Barred Maids”.

So, what was the news story behind these oh-so amusing references to those wonderful human beings who bring so much happiness, and more importantly a large glass of Pinot Grigio, to parched lawyers at the end of a long week?

It was the groundbreaking and extraordinary news that discriminatory advertisements are unlawful.

Some of our more alert readers might at this point find themselves thinking “umm, haven’t they been unlawful for a while now?”. If you’re such a reader, give yourself a pat on the back.

What has actually happened is that the Equality & Human Rights Commission (EHRC) has published a series of short guides to help people who place advertisements comply with their legal obligations under the Equality Act 2010.

Rebecca Hilsenrath, Chief Executive of the EHRC, said “The high volume of complaints we receive each year shows employers and service providers have sometimes opened themselves to potentially costly legal action. This is usually as a result of confusion about what is and isn’t permitted by equality legislation. This clear and brief guidance answers the questions people often ask us and should help keep everybody on the right side of the law.”

In fact, the EHRC received over 100 complaints about discriminatory adverts over the last year, including complaints about:

  • Adverts for a “Saturday boy” and a “part-time shot girl” (I understand the latter was an advert for a female bartender who specifically pours shots, as opposed to, say, a woman who is occasionally shot);
  • An advert stating that those aged over 45 need not apply or that an advertised salsa class was “not suitable for people over 60”;
  • An advert to casting agencies asking them to supply only homosexual applicants to work as extras in a TV programme featuring a Gay Pride story; and
  • A hotel advertising that it would not offer accommodation to disabled people.

Now, perhaps I’m being unfair, but I would have thought that even Winnie the Pooh, a bear of, famously, very little brain, could work out that all the above examples are clearly, or at least in the absence of any justification, discriminatory.

The new guides published by the EHRC include a checklist for advertisers and publishers and some frequently asked questions giving practical examples.

One example in the guide which gave me pause for thought was the question “Can nightclubs or bars advertise half-price drinks for women only?”. Now, I’ve been an employment lawyer for more years than I care to remember. I’ve cross-examined witnesses on discriminatory practices and I have trained managers on how to avoid allegations of discrimination. I have even successfully gained admittance to venues professing to allow only men, by berating doormen and managers at length as to the nature of equality laws. As a result, I am slightly ashamed to admit that it has never before occurred to me that Ladies Night in the pub is completely discriminatory. Of course, now that it’s been brought to my attention, I will never again take advantage of an offer of cheaper alcoholic beverages simply because I am a woman. Honest.

Not only did the EHRC guides lead me to a startling realisation, but they also give a helpful reminder of what to bear in mind when advertising, whether it’s an advert for a job, or advertising the products or services your company offers; however, the legal position has not changed: any advert which indicates that the job, product or service is restricted to certain people because of a protected characteristic is likely to be unlawful, unless it can be justified.