Job adverts: can you lawfully limit applications from people with a particular protected characteristic?

The Equality and Human Rights Commission (EHRC) has updated its guidance on discriminatory job adverts. Most of the content is uncontroversial. The section on providing single sex services and limiting job applications for people working there to a particular sex, however, is less so. 

This blog considers the law, evaluates the new guidance and flags some issues you need to think about if you want to limit job applications to people who have a particular protected characteristic.

Can employers limit job applications to a particular group of people?

In most cases you cannot restrict applications for a job vacancy to people with a particular protected characteristic, such as to men or to people of a particular age etc. You should just appoint the best person for the job. However, the Equality Act 2010 contains exemptions to this general rule: it recognises that, in some situations, employers can (and arguably should) discriminate in favour of a particular group of people both in terms of deciding to whom it is going to provide services and who it engages to work in those services.

Employers can require a job applicant or employee to have a particular protected characteristic (or to not have one) only where having (or not having) that protected characteristic is necessary for the role. Schedule 9 of the Equality Act sets out the work exceptions, and Part 1 the occupational requirements that employers have to meet.  

If you wish to restrict employment to people who have a particular characteristic you must be able to objectively justify your approach. To do this you must:

• have a legitimate aim for the restriction; and
• be able to demonstrate that imposing the restriction is a proportionate way of achieving that aim 

The guidance makes it clear that to meet the proportionality part of the test, there must be no other, less discriminatory means of achieving the same aim and that any discriminatory impact is justified by the aim. It provides a couple of helpful examples to illustrate this:

“An occupational requirement might be a charity that is recruiting a community health advocate for the Sikh community, and it is necessary for the person to be Sikh to communicate effectively with community members” 

And an example of an objectively justifiable requirement could be “a specification that a public changing room attendant is the same sex as the people using the facilities. The requirement is intended to achieve the legitimate aim of protecting the privacy and dignity of services users. It is likely to be proportionate as there is unlikely to be a less discriminatory way of doing so. It may therefore be lawful.”

Do the exemptions apply to all protected characteristics?

The general occupational requirement provisions apply to all protected characteristics where the employer wants to limit applications to people with a specific protected characteristic or exclude some people with a particular protected characteristic. 

There are additional requirements that apply where the role in question is for the purposes of an organised religion and in some other limited circumstances. Where these apply, the Equality Act sets out which protected characteristics an employer can lawfully exclude.

Does sex mean legal or biological sex for these purposes? 

The Equality Act defines sex as a reference to a man or to a woman. Man means a male of any age and woman means a female of any age. Many people assume that this means someone's biological sex, but that term isn't used anywhere in the legislation. 

The guidance states that:

•  a person's sex means the “legal sex recorded on their birth certificate or their Gender Recognition Certificate”; and
• employers can exclude trans women with the protected characteristic of gender reassignment from women only roles unless they have a GRC which records their sex as female for legal purposes

This follows the interpretation of sex accepted by the Inner House in For Scotland v The Scottish Ministers [2023].

This guidance has been criticised by some as going too far and, by others, for not going far enough on the issue of sex. Some commentators think that employers who, for example, operate single sex services to women (such as rape crisis centers) should include trans women in their recruitment pool, with or without a GRC.  

Other people suggest that employers should exclude all biological men even if they have a GRC and argue that including trans women with a GRC could indirectly discriminate against service users. A test case on this issue is being brought by a rape survivor against Brighton's Rape Crisis Center Survivor's Network after it refused to provide a woman-only peer support group. [This case relates to the sex of service users, not workers and engages different provisions of the Equality Act.]

Academic Michael Foran argues that the interpretation adopted by the Scottish court and the EHRC makes no legal sense. An employer has to establish a legitimate aim to exclude men in the first place and he questions how that legitimate aim can be achieved by excluding trans woman who don't have a GRC, but including those who do - as both are biological men. 

That issue will (hopefully) be determined by the Supreme Court later this year. For Women Scotland are bringing a legal case which seeks to clarify what sex means in the Equality Act and how this interplays with the concept of legal sex set out in the Gender Recognition Act 2004. We'll keep you posted on how that plays out.

In the meantime, the EHRC has said that it will take action against employers that breach its guidelines. Baroness Kishwer Falkner, EHRC chairwoman, said: “As Britain’s equality regulator, we have a duty to promote and uphold Britain’s equality laws. We recognise the need for clarity regarding the lawful use of the occupational requirement exemptions set out in Schedule 9 of the Equality Act. So we have taken action to provide it. Employers should also be aware that the EHRC will take action to uphold the Equality Act. Where we are made aware of potential misapplication of Schedule 9 provisions, we will continue to assess and take action to resolve these on a case-by-case basis.”

Can employers say that it welcomes applications from particular groups?

You can address disadvantage or underrepresentation in your organisation by encouraging groups who share a particular protected characteristic to apply for vacancies. This is called positive action. The guidance says that it's lawful to do this if you have a good reason to think that people with a particular protected characteristic are underrepresented or face disadvantage, and the action taken will address this and is proportionate. 

If you want to take positive action, your advert should make it clear that you are seeking applications from everyone but you wish to encourage those from people with a particular protected characteristic on the basis that they are underrepresented or disadvantaged.  

Positive action in recruitment can only be used to make people from protected characteristic groups aware of recruitment opportunities and encourage them to apply for a job. You cannot restrict the job opportunity to someone with a particular protected characteristic (other than as set out above) or treat them more favourably during the recruitment process because they have a protected characteristic - although you should take positive steps to ameliorate any disadvantage to disabled candidates.

There are some situations where you can select someone on the basis of their protected characteristic but only where there is a genuine tie break at the interview stage. If you wish to do that we suggest that you take legal advice as it’s easy to get this wrong. 

How we can help

We act for a number of organisations that rely on the exemptions in the Equality Act to restrict employment to people with a particular characteristic. Please speak to specialist employment lawyer Charlotte Rees-John if you need help. 

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