Discriminatory advertisements: updated EHRC guidance

The Equality and Human Rights Commission (EHRC) has updated its guidance on discriminatory advertisements.

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 2010 Act specifically allows such a restriction.

Last updated in 2016, the revised guidance focuses on the section called: When is an advert which restricts a job or service to particular groups lawful? 

The updated guidance provides greater clarity around ‘occupational requirements’, under Sch. 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 guidance now includes examples in relation to ‘occupational requirement’ and where such a requirement applies, the employer must ensure it is objectively justifiable (i.e. a proportionate means of achieving a legitimate aim). Guidance in relation to the protected characteristic of ‘sex’ now states that ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate (GRC). So a sex-based occupational requirement that a job applicant is woman will include women who are recorded female at birth and also transgender women who have a GRC. The guidance also notes that Sch. 9 also allows an occupational requirement to exclude a transgender person where it is objectively justified, and this can include those who have a GRC.