Labour & European Law Review Weekly Issue 459 02 March 2016
Following scores of complaints about discriminatory adverts, the Equality and Human Rights Commission has published a series of short guides and checklists for advertisers and publishers.
The good practice checklist explains the circumstances in which adverts for goods, facilities and services can be discriminatory under the Equality Act 2010. This could include:
- Adverts for hotels, restaurants, nightclubs, pubs and recreation centres giving preferential treatment to a particular group, such as offering women free entry into a nightclub.
- Adverts for financial facilities provided by banks, credit card companies, stores, insurance companies, building societies and local authorities that require applicants to produce a particular national passport as proof of identity.
- Adverts for public transport or travel and transport facilities offered by private companies or travel agents such as a holiday provider stating that it will not accept group bookings from all-male parties.
Although there are limited circumstances under the Act when the provision of goods, facilities and services can be restricted to particular groups, there must be a legitimate aim for the restriction and it must be a proportionate way of achieving that aim. An advert should therefore clearly explain the basis and reasons for any restriction.
For example, an advert for women-only swimming sessions might state that customer feedback showed that some women would not participate in mixed-sex sessions and that providing women-only sessions would make the service more effective for a greater proportion of female customers.
Equally it is not unlawful to encourage groups who share a particular protected characteristic to apply for vacancies in order to address disadvantage or underrepresentation. Positive action (as it is called) is lawful if it is reasonable to think that people with a particular protected characteristic are underrepresented or face disadvantage. In addition the Commission has published guidance for individuals who believe that they have been discriminated against by an advert, such as being refused a service, and want to make a claim.
Neil Todd of Thompsons Solicitors commented “This is welcome guidance from the Equality and Human Rights Commission which will hopefully help reduce the number of complaints that have been received about organisations using discriminatory adverts”.
To read the guides, go to: http://www.equalityhumanrights.com/unlawful-adverts-jeopardise-job-opportunities-says-commission