Discriminatory advertising - can a potential job applicant bring a claim?

It is well established that the Equality and Human Rights Commission can take action against an employer for publishing a job advert that indicates an intention to discriminate unlawfully on grounds of sex, race or disability (although currently not age, religion/belief or sexual orientation). But can a potential job applicant bring a claim if they have been discouraged from applying for a job by a discriminatory advert?

In Cardiff Women's Aid v. Hartup (1984), the Employment Appeal Tribunal (EAT) said not; it held that placing a discriminatory advertisement merely indicated an 'intention' to discriminate but was not an act of discrimination in itself. Following a judgment delivered by the European Court of Justice (ECJ) last week, however, the EAT's approach in the Hartup case must now be considered flawed.

The ECJ ruled that a discriminatory statement made to the world at large in a recruitment exercise constitutes unlawful direct discrimination. Although the case involved race discrimination, the same principle will apply to other grounds of discrimination.

Although not spelled out, it is implicit in the court's reasoning that potential applicants who are put off applying for a job by a discriminatory advert would be able to bring a tribunal claim. Examples of discriminatory job adverts could include one that states applicants must be above or below a particular age where the age restriction cannot be justified, or one requiring applicants to be of a particular ethnic origin where this is not a genuine occupational requirement for the job in question.

In this sort of case, no doubt the chances that the claimant would have been offered the job absent discrimination would have to be reflected in the level of compensation. But there could still be scope for a significant injury to feelings award even if it transpires that the claimant was unlikely to get the job.

One question left in doubt by the ECJ's judgment, however, is whether someone could bring a claim even if they had no intention of applying for a job but were offended by the advert. Technically, it is possible that the wording of UK legislation could cover claims from those who had no intention of applying. Without a clear indication from the ECJ that this is what EU law intends, however, some tribunals could be reluctant to allow claims of this nature. As the tribunal said in the age discrimination case of GPS (Great Britain) Ltd v. Clarke (2007):

"If claims such as this one were to be allowed, it would enable any member of the public to act as an age policeman - scouring advertisements for ageism to bring claims, regardless of whether they were interested in the job advertised or not."

Of course, if it came out in evidence that the claimant did not intend to apply for the role, the tribunal may decline to award any compensation in any event.

Employers would be well advised to revisit their advertising literature and address any issues with their recruitment providers and internal team.

Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v. Firma Feryn NV (2008)