Recruiters should be mindful that all candidates are treated fairly, while attempting to be inclusive, said Michael Redston, employment law associate solicitor at Aaron and Partners.
He told HR magazine: “When taking positive action in recruitment, employers should ensure that adverts emphasise that anyone can apply, but that individuals with particular protected characteristics are being encouraged on the basis they are underrepresented.
“Generally, excluding or discouraging an individual with a protected characteristic from applying for a role would amount to discrimination under the Equality Act 2010.
“Recruiters may also be cautious about public image and accusations of 'reverse discrimination', being perceived to be unjustly prioritising candidates as a 'diversity hire'. It is therefore important that the communications and messaging in the advert are clear and supportive of all applicants.”
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Research led by recruitment firm The IN Group in July 2024 showed that more than a third of leaders thought their organisation fell behind on diversity.
But organisations that employ a diverse workforce are likely to perform better, Redston emphasised.
He said: “Although there are no legal obligations to specify a job advert as being inclusive of people from diverse backgrounds, diversity in recruitment is generally considered a positive for business: it reflects society, ultimately encouraging innovation, development and engagement within the organisation.
“An employer can address underrepresentation or disadvantage within an organisation through positive action, encouraging groups who share a particular characteristic to apply for roles.”
Robert Peston, political editor of ITV News, came under fire on the social media platform X after he posted a job advert (7 August) for a paid internship that was “only open to individuals from a group that is under-represented in the creative industries”.
The job posting listed candidates that would be considered for the role, which included “Black, Asian and ethnically diverse candidates, disabled people, those undergoing gender reassignment/transitioning and individuals from lower socioeconomic backgrounds”.
Russell Norton, director of client experience at consultancy Scarlettabbott, told HR magazine that inclusivity in hiring should be based on increasing access, rather than restricting it to certain groups.
He said: “When it comes to considerations of diversity and inclusivity, the recruitment process shouldn't be about looking for a specific candidate. It's often best to avoid being specific about who you want to recruit when advertising jobs. Even well-meaning job listings run the risk of backlash based on positive discrimination and, ultimately, won't lead to the best outcomes for the candidate or the team they’re joining.”
Norton recommended using a breadth of criteria and job posting sites to ensure that adverts are accessible to all candidates.
“Instead, businesses should use a systematic approach to reduce and remove bias from recruitment and selection processes.
“When you market the role, expand the range of sites you’re marketing it on, make the language and job description understandable and accessible for everyone, and test it with your D&I networks to remove language that could be off-putting to people in their community.”
Companies in the top quartile of gender diversity are 39% more likely to achieve financial outperformance versus companies in the bottom quartile, research by business consultancy McKinsey found (January 2024).
Speaking to HR magazine, Alexandra Bonner, employment partner at law firm Seddons, explained that employers might be able to require a candidate to have a protected characteristic in exceptional circumstances.
Read more: EHRC clarifies rules on excluding transgender people when hiring
“In limited circumstances, an employer may be able to defend recruiting a particular person in circumstances where it would otherwise be directly discriminatory,” she said.
“That is where there is an occupational requirement for a person to have or not have a particular characteristic. The employer must show, for example, that being female is an occupational requirement and the requirement of being female is a proportionate means of achieving a legitimate aim.
“An employer can also use positive action, by employing someone with a protected characteristic that may be under-represented in their business but there is no obligation to do so.”
