Being “cool and good-looking” in the Employment Tribunal – avoiding discriminatory job advertising

Being “cool and good-looking” in the Employment Tribunal – avoiding discriminatory job advertising

“Results-driven”. “Experienced and dynamic”. “Cool and good-looking”.  “Young and energetic”. Only the first two of these appeared in job advertisements in FashionUnited in recent weeks, whilst the third created waves in the legal and HR community when A+F advertised for staff to work in its first store in Aberdeen last year. Thankfully for any prospective employer, the fourth advertisement did not appear in any publication, but even the language of the other adverts raises the spectre of age discrimination.

The world of fashion is usually associated with youth and beauty and is often criticized, sometimes unfairly, for excluding older clientele. That’s a commercial issue for the brands. But having the same mindset when recruiting into the industry can result in potentially serious legal problems. A failure to advertise posts to older workers could land employers in the not very fashionable Employment Tribunal, and facing claims for unlimited compensation. Wishing to employ younger staff in order to complement a brand image, is unlikely to cut it in any forum as a defence to an age discrimination claim. Just ask A&F who have found themselves defending disability, age, race and religious discrimination cases both in the UK and USA as a result of their “look policy”.

It is unlawful to discriminate against job applicants just as it is unlawful to discriminate against employees.  This is sometimes overlooked by employers.  Employers are therefore exposed to claims from job applicants if they have discriminatory recruitment practices (including job advertisements). 

Bearing in mind the number of possible heads of discrimination (currently race, sex, disability, age, religion or belief, sexual orientation, gender re-assignment, or marital or civil partner status, and possibly ‘caste’ if an Employment Tribunal test case is successful), it is quite easy for the wording of job advertisements to be discriminatory in some way.  The biggest risk is likely to be a claim of age discrimination. This attracts the highest levels of compensation awarded by the Employment Tribunals, and the number of such claims is increasing year on year. With the average compensation awarded for age discrimination coming in at £30,289, this is not a mistake that employers can afford to make!

Bear in mind that age claims aren’t exclusively the preserve of the older applicant deterred by errant wording in a job advertisement; younger applicants can also bring claims if the language implies that older workers are being favoured.

Serial litigants and those who seek to entrap potential employers (perhaps by submitting identical CVs but under different names or with different ages) are a real risk in this area. One such person raised age discrimination claims against at least 60 firms and agencies on the basis that they used words such as "recent graduate" or "school leaver" in their recruitment campaigns and job adverts, arguing that he had been deterred from applying for the jobs.  Although the claims were ultimately unsuccessful (he was found to be a ‘serial litigant’ who was exploiting the law for his financial gain rather than having a genuine grievance), it is a stark reminder of the dangers employers run in this area – there is no need to apply and be rejected before bringing a claim.

Employers need to take extra care when formulating their adverts; the above example of A+F’s advert for “cool and good-looking” staff is highly subjective, and arguably shows a bias towards a youthful workforce.  An advertisement in this month’s FashionUnited seeking ‘recent graduates’ is yet another example of potentially problematic wording that might indicate similar bias. 

But wording need not be so blatant to still leave an employer open to a claim for discrimination. Take for example, an advert that states “X  is seeking to recruit an account manager with at least five years’ continuous experience”.

Although the wording is almost certainly not directly discriminatory (it does not, thankfully, state that the employer is only looking for candidates over the age of 45), nonetheless it is arguably discriminatory on grounds of age and, possibly, sex.  The requirement of “at least five years’” experience may mean that older applicants are advantaged over younger applicants since they are more likely to have at least that level of experience.  Further, the fact that continuous experience is stated arguably means that women are being put at a disadvantage because they are more likely to have had a break in employment (to care for children, for example) than their male counterparts.  Unless such statements and requirements can be “objectively justified” (which will be difficult to show in most cases), the prospective employer is likely to be exposed to claims.

What then should an employer do when preparing job advertisements? Here are some tips:

• Think very carefully about the requirements of the role.  Draw up a detailed job description and person specification, focusing on the skills candidates need to demonstrate and why. 
• Keep a paper trail of your reasoning. This can help to refute any later allegations of discrimination because it shows an objective assessment of the requirements of the role in question – reasoning which is not tainted by discriminatory factors. 
• Avoid the A+F pitfalls. Be careful in suggesting that you would only be interested in recruiting candidates that fall within a particular “image”, particularly one which favours the young and beautiful!
• If a degree of previous experience is required, question why that is the case and ensure that this can be justified (e.g. why six years’ previous experience, rather than five or three, and why continuous?).  It is preferable to require certain types of experience rather than a particular length of experience.
• Resist the idea that an applicant is “overqualified”. This often is a thinly veiled reference to age.
•  Apply the role requirements and person specifications methodically to the applications received. Create a database of applicants’ details.  These techniques help to spot potential “serial job applicants” (i.e. people who apply for the same position a number of times using a different name or details in an attempt to unearth some discriminatory treatment, cause embarrassment and claim compensation).
   

And finally……advertise widely (not just in media where younger candidates are likely to see it) and avoid like the plague words that are red rags to potential claimants, such as “young” and “energetic”!

Mark Watson is a partner and Laura Evans is an associate in the fashionlaw team at Fox Williams LLP. Both specialise in employment law. They can be contacted at mawatson@foxwilliams.com and levans@foxwilliams.com.