Controversial? Discriminatory? Acceptable?
This headline is an extract from a current advert for an internship candidates at the BBC. Underpinning their justification is their understanding that the Equality Act 2010 allows job applicants with a particular protected characteristic to be targeted when recruiting. Protected characteristics are; age, disability, race, religion or belief, sex, sexual orientation, pregnancy, gender reassignment, marriage or civil partnership status. However, targeting is only justified where having that particular characteristic is an occupational requirement.
To qualify as an occupational requirement, the targeted characteristic must:
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be relevant to the nature or context of the work to be undertaken
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be of critical importance to the role
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be a proportionate means of achieving a legitimate aim.
Acceptable examples when an occupational requirement might apply:
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requiring a person of a particular race, sex or age for an acting role where there is a need for authenticity
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privacy or decency considerations might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.
In reality this may be seen in practice where the job involves counselling vulnerable groups and the employer feels that having a job holder with the same characteristics would mean the role could be done more effectively. Those under 18 are unable to sell alcohol. There are also specific exemptions for religious bodies and organisations with a religious ethos (such as a charitable trust).
While targeting certain characteristics may be legal, it can still leave a bad taste in the mouth of potential candidates who may not be aware of this technical detail. In the case of the internship, which made the national press earlier this week, I believe the BBC could have done more to protect themselves from potential reputational damage.
Our advice is simple; where you are targeting a protected characteristic as an occupational requirement:
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explain clearly how the characteristic qualifies as an occupational requirement within any job advertising, in the job description and also the person specification
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make specific reference the fact that this targeting is permitted under under Schedule 9, part 1 of the Equality Act 2010
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