Discriminatory Job Adverts and Unlawful Selection Criteria

Job adverts and the criteria employers use to select candidates are essential parts of the recruitment process. In England and Wales, these elements must comply with the Equality Act 2010 and related discrimination law. Discriminatory job adverts or unlawful selection criteria can exclude or disadvantage applicants because of their protected characteristics, such as age, disability, race, religion, sex or sexual orientation, and may give rise to claims in employment tribunals. This guide explains what makes job adverts and selection criteria unlawful, how discrimination can arise - either directly or indirectly - and provides practical guidance for both applicants and employers on rights, legal risks, remedies and best practice.

Protected Characteristics and Recruitment Law

Under the Equality Act 2010, discrimination on the basis of protected characteristics is unlawful throughout the recruitment process, including during advertising, candidate selection and offer decisions. The protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race (including nationality)
• religion or belief
• sex
• sexual orientation.

Employers must not discriminate directly or indirectly against applicants because of these characteristics when drafting job adverts or setting selection criteria.

Discriminatory Job Adverts: Legal Standards

What Makes an Advert Discriminatory?

A job advert can be discriminatory where:

• it explicitly excludes or prefers applicants with a particular protected characteristic;
• it uses language or terms that suggest a preference based on protected traits;
• it places adverts in venues or media that effectively exclude certain groups without justification;
• it guides recruitment agencies to discriminate on behalf of the employer.

A discriminatory advert goes beyond poor practice - it may amount to direct discrimination, which is unlawful unless a lawful exception applies.

Examples of Unlawful Advert Language

Certain phrases and descriptors in job adverts can create legal risk if they imply exclusion of particular groups:

• Age‑related phrases such as “young”, “recent graduate” or “energetic” without objective justification can exclude older or younger applicants.
• Gendered job titles such as “salesman”, “waitress” or “barmaid” signal preference for a particular sex.
• Nationality requirements like “UK passport holders only” when the relevant requirement is simply the right to work in the UK.
• Disability‑exclusive phrasing such as “must be able‑bodied” when ability to perform specific tasks could be described objectively.

The Equality and Human Rights Commission (EHRC) guidance emphasises that adverts must not signal intent to discriminate or restrict applications to certain groups without clear legal justification.

Occupational Requirements and Lawful Exceptions

There are very limited circumstances where specifying a protected characteristic in an advert may be lawful, such as when there is a genuine and proportionate occupational requirement for the role. For example, recruiting a counsellor for women who have experienced gender‑based violence may lawfully specify that applicants must be female if it can be objectively justified.

Similarly, positive action measures can allow outreach to under‑represented groups, such as advertising in media that may attract candidates from protected groups, provided this does not disadvantage others or limit applications solely to those groups.

Unlawful Selection Criteria

Direct Discrimination in Selection

Selection criteria become unlawful when they result in less favourable treatment of applicants because of a protected characteristic. For example, rejecting a candidate because of their race or pregnancy is direct discrimination.

Indirect Discrimination Through Criteria

Unlawful selection may also arise indirectly when a neutral criterion disproportionately disadvantages people from a protected group and cannot be objectively justified. For instance:

• requiring a specific level of physical ability that is not essential to the job and disproportionately excludes certain applicants;
• insisting on rigid work patterns that disadvantage applicants with caring responsibilities. These practices are indirect discrimination unless justified by a legitimate business need.

All selection criteria should be clearly linked to the genuine requirements of the job and applied consistently to avoid unlawful discrimination.

Where Discrimination Can Occur in Recruitment

Discriminatory job adverts and selection criteria may affect candidates at various stages:

• Advert placement and wording
• Application form design and questions
• Shortlisting processes
• Interview questions and assessments
• Final selection and offer decisions

Failing to consider equality law at each stage can expose employers to tribunal claims from unsuccessful applicants who allege discrimination.

Legal Risks and Enforcement

Tribunal Claims

Individuals who believe they have been discouraged from applying or have been treated less favourably due to a discriminatory advert or selection process can bring a claim to an employment tribunal. They must generally present the claim within three months minus one day from the date of the discriminatory act. (Standard UK tribunal time limit practice)

Tribunal claims may arise where:

• a job advert effectively excludes a protected group;
• selection criteria have an unlawful discriminatory impact;
• candidates with similar qualifications are treated differently for discriminatory reasons.

EHRC Powers

In addition to tribunal claims, the Equality and Human Rights Commission can take enforcement action against discriminatory advertising practices, even where no individual claimant has brought a case.

Practical Guidance for Employers

Drafting Inclusive Job Adverts

• Use neutral, objective language that describes the role and requirements without implying exclusion.
• Avoid age‑biased phrases and gendered job titles.
• State clearly that applications are welcome from all suitably qualified candidates.

Selection Criteria Design

• Ensure all criteria are necessary for the role and free from discriminatory effect.
• Base criteria on skills, experience and competencies rather than personal traits.
• Regularly review recruitment policies to ensure compliance with equality law.

Advertising Broadly

Advertise roles widely and in multiple channels to avoid inadvertent indirect discrimination by limiting visibility to certain groups.

Practical Steps for Applicants

• Keep records of job adverts and correspondence.
• If you believe an advert is discriminatory, consider seeking advice from Citizens Advice, trade unions or legal specialists.
• An employer's recruitment agency may also be liable if it acted on discriminatory instructions.

Summary

Job adverts and selection criteria must comply with the Equality Act 2010 to prevent both direct and indirect discrimination in recruitment. Discriminatory adverts and unlawful selection criteria can unfairly exclude or disadvantage candidates based on protected characteristics. Legal risks for employers include tribunal claims and enforcement action by the EHRC. Employers should use neutral language, justify selection criteria objectively, advertise inclusively and review recruitment practices periodically. Candidates who suspect unlawful discrimination can document adverts and seek advice to explore potential claims.