Guidance on discriminatory adverts

This guidance explains what a discriminatory advert is and how to make a complaint if you think you have been discriminated against.

Placing or publishing a discriminatory advert is unlawful under the Equality Act 2010 (‘the Act’). The Act protects individuals from being discriminated against because of a protected characteristic. The protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion and belief
• sex
• sexual orientation

The Act applies to all publishers and advertisers and covers employment and the provision of goods, facilities and services. It also applies to: 

• employment agencies and people who advertise for contract workers 
• vocational training services 
• trade unions; partnerships 
• education providers 
• the letting and selling of land or property 
• service providers such as pubs, clubs and shops 

An advert is a notice or announcement – written or oral – promoting a job opportunity, product, service or event. Adverts might appear in newspapers, magazines, on the television, radio, internet, in shop windows or in emails.

A discriminatory advert is an advert which restricts jobs, goods, facilities or services to people with particular protected characteristics, such as to men or to people of a particular age group. They are unlawful except in very limited circumstances where the Act allows such a restriction if it can be objectively justified.

Any part of an advert could be discriminatory. For example, descriptors, job titles, illustrations and pictures which relate to particular protected characteristics may be discriminatory as they may imply that only people with those characteristics are eligible for the job or service being advertised. 

There are very limited circumstances under the Act when employers or service providers can target particular groups in their adverts. 

An advert that restricts goods, facilities and services to people with a particular protected characteristic is lawful only where there is a specific exception in the Act that allows such a restriction. Most restrictions must be 'objectively justified'. To be objectively justified there must be a legitimate aim for the restriction and the restriction must be a proportionate way of achieving that aim. Being proportionate means that there are no other, less discriminatory means of achieving that aim and that any discriminatory impact is justified by the aim. 

An advert should clearly explain the basis and reasons for the restriction. 

Employers can require a job applicant or employee to have a particular protected characteristic only where having that protected characteristic is necessary for the role. This is called an ‘occupational requirement’ under Schedule 9 of the Equality Act 2010.

Where an occupational requirement applies, the employer must make sure that it is objectively justifiable. This means that it must be a proportionate means of achieving a legitimate aim.

Occupational requirements under Schedule 9 must relate to having a particular protected characteristic as defined in the Equality Act 2010. The protected characteristic of ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate (GRC). This means that a sex-based occupational requirement that an applicant is a woman – as is common within specialist support services for women, such as rape counselling – will include women who are recorded female at birth and also transgender women who have obtained a GRC.  

However, Schedule 9 also permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include those who have obtained a GRC. A ‘sex-based’ occupational requirement to be a woman under Schedule 9 cannot include transgender women who have not obtained a GRC, as they do not have legal status as women under the Equality Act 2010.  

It is lawful for private members’ clubs, such as golf and bowling clubs, to restrict membership to persons who share a protected characteristic, except on the basis of colour. However, they cannot discriminate between members, for example by offering different membership rates for men and women. Also, if the club provides a service which is open to the public, it is unlawful to restrict access to that unless one of the specific exceptions in the Act applies. 

It is not unlawful to address disadvantage or underrepresentation by encouraging groups who share a particular protected characteristic to apply for vacancies. This is called positive action. Positive action is lawful if it is reasonable 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 an employer wants to take positive action in this way, the advert should clearly state the employer is seeking applications from everyone but wishes to encourage applications from people with a particular protected characteristic on the basis that they are underrepresented or face disadvantage.  

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. It cannot be used to restrict the job opportunity to someone with a particular protected characteristic or result in an applicant being treated more favourably during the recruitment process because they have a protected characteristic. However, if the two best candidates for a job are equally qualified, the candidate from a disadvantaged or underrepresented group can be given preference for the job if this is a proportionate means of helping to address the disadvantage or increase the group’s participation. 

It is also lawful to treat disabled people more favourably in a recruitment process. This could include by operating a guaranteed interview scheme for those who identify as disabled and meet the minimum requirements for the post. An advert stating this would not be unlawful.

Anybody can complain to the advertiser or publisher about a discriminatory advert. If an individual has suffered a disadvantage, they can use the advert as evidence in a legal claim for discrimination. The Equality and Human Rights Commission (EHRC) can use its enforcement powers to take action in relation to discriminatory adverts even where it has not identified any individual who has been disadvantaged by the advert. 

The Advertising Standards Authority (ASA) is the UK’s independent regulator for advertising across all media. You can complain to the ASA if you think an advert is dishonest or misleading or if a special offer, competition or prize promotion is unfair.

If you believe an advert for a job, goods, facilities or services is discriminatory, you should write to the employer or the goods, facilities or services provider and to the publisher of the advert. 

Where possible, your letter should include a copy of the advert and provide the following: 

• where the advert was published (for example, which newspaper or website) and the date of publication 

• the reason you believe the advert is discriminatory 

You should also: 

• ask for reasons why the advert does not breach the Act (include a link to the Act if sent by email) 

• ask for a reply within 21 days 

Keep a copy of the letter or email. If you want to ensure that the letter has been received, you can send it by recorded delivery. If you do not receive a reply, or you are not satisfied with the response, you may want to send a copy of the advert and all relevant correspondence to EHRC for us to consider.

When we receive a complaint about a discriminatory advert, we assess the content and context of the advert along with any correspondence between the advertiser or publisher and the complainant. 

We may then write to the advertiser or publisher to ask what their justification is for the advert. 

If we receive a reasonable justification or an assurance that it was an error and will not happen again, we normally close the complaint. 

EHRC resolves most complaints without taking formal action. However, if a satisfactory assurance is not received, we will consider whether taking further steps, such as enforcement action, might be appropriate. 

We do not provide individuals with advice or an opinion on the legality of an advertisement. 

We do not provide information to members of the public about our inquiries into discriminatory adverts. This is because doing so could compromise any enforcement action and unfairly damage the reputation of the company or individual if allegations are not proven.

If you believe you have been discriminated against by an advert, such as being refused a service, and want to make a legal claim for discrimination, you will need to be able to prove that you have suffered a disadvantage. The existence of a discriminatory advert will help provide evidence for your claim. 

If you wish to apply for an advertised job that restricts applications to people with a particular protected characteristic that you do not have, you should ask the employer or recruitment agency whether an occupational requirement or exception applies. If none does, you should be treated equally to all other applicants. If you apply in time but are not invited for interview, despite being suitably qualified and experienced, you may wish to make further enquiries about the reasons. If the reasons given relate to a protected characteristic for which there is no occupational requirement or permissible exception in the Act, this may indicate that you have been subject to discrimination. 

If you want guidance on your particular situation, you should contact the Equality Advisory Support Service. This provides advice to individuals who may have experienced discrimination. 

You can also find more detailed information in the Employment Statutory Code of Practice or the Services, Public Functions and Associations Statutory Code of Practice. 

Complaints about dishonest or offensive advertising should be made to the Advertising Standards Authority, Mid City Place, 71 High Holborn, London, WC1V 6QT.