Which of the following job advertisements is most likely to be considered illegal?

October 26, 2021

The number of job vacancies in the UK has hit a record high according to the Office for National Statistics. As a result, recruitment will be many employers' primary focus and how to attract the best talent is a hot topic for HR teams.

A recent survey by the Society for Human Resource Management found that 84% of organisations use social media to recruit job candidates and 79% of jobseekers use social media when carrying out their job search. However, advertising jobs through social media could lead to claims of discrimination and employers should think carefully about how to use social media in their recruitment practices.

Recruitment and discrimination

The Equality Act 2010 provides that discrimination, harassment and victimisation in recruitment is unlawful in relation to nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The legislation states that an employer should not discriminate against a person in the "arrangements" the employer makes for deciding to whom to offer employment. This includes advertisements for jobs, the application process and the interview. 

Social media and job advertisements

Many employers advertise jobs on social media sites.

However, recent investigations by campaign groups have suggested that social media platforms may be using automated algorithms that exclude certain users from viewing job advertisements based on characteristics such as gender and age. For example, the majority of users shown a job for a mechanic were men and for a nursery nurse were women. This was the case even when the employer did not request that the social media platform target specific users.

Employer liability

The predominant focus of campaign groups is on the social media platforms that distribute adverts to users. However, employers could still face legal claims.

For example, if an employer actively uses the services of a social media platform which is known to use algorithms that limit access to job advertisements to certain groups of people, the employer could be found to have discriminated in the "arrangements" used for the job adverts.

Whilst successful claims are most likely where the employer has knowledge of a potentially discriminatory algorithm, there is a possibility that an employer could, under the Equality Act 2010, be liable even if it has no knowledge of the platform's use of these practices.

Advice to employers

Social media can be a very useful tool for employers to advertise jobs and reach a greater pool of talent than more traditional recruitment methods.

However, employers should avoid any suggestion they are requesting that advertisements are targeted at specific users. They should also review carefully the users who are viewing their advertisements so they can determine if there are any potential issues with the algorithms being used by the platforms. Employers are probably better to use both online and offline advertisements to attract a more diverse range of potential candidates.