Navigating the legal landscape of freelance job adverts in the UK tech sector

In the dynamic world of technology, the distinction between permanent employees and freelancers/contractors continues to blur, presenting unique challenges for employers when drafting job advertisements, writes Charlotte Gerrish, founding lawyer at Gerrish Legal.

Spotting right from wrong on a tech jobs board

But the law in England and Wales, with its comprehensive equality and employment legislation, provides a clear framework for what should and shouldn't be specified in tech job adverts.

Understanding these legal nuances is important for both tech employers -- who need to attract top talent while staying compliant -- and tech candidates -- who need to discern if their prospective employer knows right from wrong.

Are tech job adverts allowed to express a preferred gender for the candidate?

Under the Equality Act 2010, discrimination against applicants based on protected characteristics such as gender is prohibited.

This legislation makes it clear that job adverts should be gender-neutral, ensuring that they are inclusive and do not deter qualified candidates from applying.

Therefore, specifying a gender, or using pronouns like “he” or “she” to describe the successful candidate, is not advisable. It could be seen as discriminatory unless there is a genuine occupational requirement that justifies this specification. In the tech sector, such cases are exceptionally rare.

What’s the law on experience, and is ‘mid-level,’ ‘heavyweight’ and ‘x’ years’ ok?

Regarding experience, employers often seek to set minimum standards to ensure tech jobs candidates have the necessary skills and knowledge.

But specifying a number of years of experience can be seen as indirectly discriminatory if it disproportionately disadvantages certain groups. For instance, younger candidates or those who have taken career breaks.

However, the applicable legislation does not explicitly forbid stating years of experience in a tech job advert, provided the requirement can be genuinely justified as necessary for the role.

A more inclusive approach is to describe the role in terms of competency levels, such as “entry-level,” “mid-weight,” or “senior.”

This method focuses on the skills and responsibilities associated with the role rather than the time spent in previous roles.

We believe this method is preferable as it encourages a broader range of applicants, aligning with the principle of meritocracy while reducing the risk of age discrimination.

Gender and experience aside, what are three legal requirements of a UK tech job advert?

Beyond the issue of discrimination, there are other legal requirements and prohibitions to consider for freelance tech job adverts:

1. Accuracy and Transparency: Adverts must accurately describe the role and must not mislead candidates about the nature of the work, the terms of engagement, or the status of the role.

2. IR35 Status: For temporary and contract opportunities, it's increasingly important for companies to specify the IR35 status of the role. The IR35 legislation affects tax treatment of freelancers and contractors and determines if they should be taxed in the same way as an employee.

Clarifying this status in the advert helps candidates understand their potential tax liabilities and employment rights, and it demonstrates the company’s compliance with their obligations.

3. Data Protection: Adverts should also comply with the General Data Protection Regulation (GDPR) and UK Data Protection Act, regarding the collection and processing of applicants' personal data. Companies need to ensure that their recruitment processes are transparent and secure, protecting candidate information from unauthorised access or use.

There’s a fair bit of what not to do, above, when it comes to freelance tech job adverts in the UK, if the employer doesn’t want to land in hot water and the candidate doesn’t want to land at an organisation potentially acting unlawfully.

So let’s now consider:

Five best practices in tech job adverts, to stay inclusive and compliant

To create and craft a lawful and effective job advert in the UK, organisations requiring tech talent should achieve the following five:

1. Use inclusive language that welcomes applicants from diverse backgrounds (N.B diverse teams often emerge in studies as significantly outperforming imbalanced teams).

2. Focus on skills, competencies, and responsibilities rather than years of experience or other potentially discriminatory criteria.

3. Provide clear and accurate information about the role, including any necessary qualifications or certifications.

4. Specify IR35 status if it is a temporary role, helping freelancers and contractors understand their working arrangement and tax implications. (N.B So-called ‘small companies’ in the private sector need not make this specification/determination; but medium-sized and large companies should, as must all public sector organisations)

5. Ensure the recruitment process is GDPR-compliant, respecting candidates' privacy and data protection rights.

By adhering to these five (and considering consulting a legal expert for detailed/tailored advice you can depend upon), tech companies can navigate the legal landscape effectively, attracting a wide pool of talent to their freelance roles while maintaining compliance.

And demonstrably following the law should reassure candidates, thereby differentiating your organisation from those organisations which don’t and therefore risk repercussions. Indeed, in a rapidly evolving tech industry where there’ s a land-grab for AI expertise and other top tech talent, staying informed and adaptable to legal standards is not just a matter of compliance -- it's also a competitive advantage.