Newly updated guidance from the Equality and Human Rights Commission (EHRC) was published last month concerning ‘discriminatory adverts’. The contents are neither revolutionary nor ground-breaking; much of it confirms what we already know about the workings of the Equality Act 2010. It does, however, provide some guidance on the protected characteristic of sex when setting occupational requirements. 

Headline 

• The protected characteristic of sex under the Equality Act 2010 means a person’s legal sex as recorded on their birth certificate or their gender recognition certificate (GRC). 

Back to basics

Placing or publishing adverts which are deemed to be discriminatory on the grounds of one or more of the nine protected characteristics under the Equality Act 2010 is unlawful. 'Adverts' include adverts for employment vacancies but can also include notices for services i.e. a sign outside bathroom facilities.  Adverts can be written or oral.  To give two rather crass (and hopefully outdated) examples of discriminatory adverts; a job advert in the local paper for a ‘waitress’ or a sign outside a BnB stating certain guests cannot stay due to their race or religion. The updated guidance gives some more nuanced examples that are worth looking at.

In certain circumstances, adverts can be restricted to people with a certain protected characteristic. Only, however, when it is an occupational requirement (OR) as permitted under the Equality Act 2010 and that OR is objectively justified. It must be a proportionate way of achieving a legitimate aim. The guidance gives the example of a charity recruiting a community health advocate for the Sikh community. There is an OR that the person appointed be Sikh so as to be able to communicate with the members of the community. 

Occupational requirements on the grounds of sex

The EHRC then provides guidance on an OR relating to sex.  We have provided the worked example below and applied the guidance. 

Worked example 

The role of carer for female service users is advertised and an occupational requirement is set that the applicant must be a woman. The legitimate aim is to preserve the dignity and privacy of the service users and this OR is a proportionate means of meeting this aim.  

If a transgender woman’s application is rejected, would that be discriminatory? The guidance notes that the protected characteristic of sex is that which is recorded on the individual’s birth certificate or on a GRC. Therefore, a transgender woman who had 'male' noted on their birth certificate and without a GRC could lawfully be excluded from the recruitment process for not fulfilling the OR. 

If the advert for the same role required that the applicant be both a woman and not transgender (as permitted under schedule 9 of the Equality Act 2010) and both these are objectively justified, then a transgender woman with a GRC could be lawfully excluded from the recruitment process. 

What are our takeaway points?

• When setting an OR for any role, ensure that you have clearly documented the aim of the restriction and made it clear that there are no other non-restrictive measures that could be put in place to reach that aim.  It is a complex area of the law and is worth seeking specific advice. 
• Think about your identification processes when recruiting for a role with a sex-based OR. To avoid potential discrimination, do you require a copy of the birth certificate or GRC of all applicants?  You should not be assuming that the OR is met purely by physical appearance. 
• The rights of the service user to their dignity and privacy whilst important must be weighed against the right of an employee to their private life. Be wary of breaching the employee’s confidentiality by informing an unhappy service user that their carer has a GRC and therefore meets the sex-based OR unless express consent has been given. 
• It’s worth noting that the new Government has promised to ‘modernise, simplify, and reform the intrusive and outdated gender recognition law’. We understand that they have not committed to self-identification in favour of a GRC, however, their current plans envisage replacing the current requirement for two years’ worth of documentation for a GRC application with a cooling off period of two years after their GRC application is made.  In addition, the panel of doctors and lawyers who currently approve GRC applications will be ditched. In its place, a single doctor specialising in gender issues will be required to give a medical report in support of the application.  We will provide updates once we learn of any draft legislation to introduce these changes.

This area is complex and often contentious.  Even the EHRC guidance is seen by some organisations as incorrect and biased. Please contact me if you would like specific advice on an issue.