Unsuccessful job applications discrimination?

Allegations by prospective employees of discrimination at the job advertisement or interview stage are becoming more common, at a time when employers often receive numerous applications for every job advertised and candidates become frustrated by their lack of success.    

If an employer discriminates in selecting candidates for interview (or for a job offer) it risks an application to an Employment Tribunal for discrimination compensation.  If this claim succeeds, there is no financial limit to the amount of compensation which the Employment Tribunal can order an employer to pay to the unsuccessful candidate.  Considerable legal costs will also be incurred, and management time wasted.

Types of  Discrimination - claims

There are 7 grounds on which a discrimination claim can be brought:

  • Age
  • Race
  • Disability
  • Sex
  • Sexual orientation
  • Gender reassignment
  • Religion or belief

These are known as “protected characteristics” (“PC”) and claims can be brought if an employer or prospective employer discriminates because of a PC reason.

Types of Discrimination

Under the Equality Act 2010 there are difference types of discrimination:

  • Direct discrimination – the most obvious example, where a person is treated less favourably than another person because of a PC;
  • Associative discrimination – direct discrimination against someone because they associate with another person who possesses a PC e.g. a worker is discriminated against, or does not get offered a job because the candidate discloses that hisher partner is disabled;
  • Discrimination by perception – direct discrimination against someone because the other person thinks that they possess a particular PC (whether or not they do) e.g. a person is discriminated against because the employer thinks that they are gay;
  • Indirect discrimination – this can apply where there is a general policy or rule which applies to everyone but disadvantages a particular PC.   The most popular example given of this potential for discrimination is when job advertisements are only offered on-line when it is felt that older people are possibly disadvantaged (age discrimination).   Figures from the Office for National Statistics show that in 2006 55% of people aged 50 or over in the UK had not used a computer in the previous 3 months compared to 13% of the 16-30 year olds.   Other figures show that only 61% of households currently have internet access.   If you offer jobs online,
  • consider offering to post application forms if candidates cannot download forms or complete them online;
  • Harassment – workers can complain of behaviour they find offensive even when it is not directed at them.   E.g. at a job interview an offensive remark is made about a particular religious group or race etc, even though the candidate is not a member of that group or race.
  • Harassment by a third party -  this is often the most contentious of all claims. An employer is potentially liable for harassment of their staff by people they do not even employ. Although now enshrined in the Equality Act 2010 this type of harassment originated from case law, including the decision in Burton and another v De Vere Hotels Ltd [1997], commonly known as the ‘Bernard Manning’ case. De Vere Hotels was found liable for the harassment of two of its staff who became the subject of the comedian’s racist and sexist jokes during his performance, despite the fact that he was not an employee of the hotel group. Essentially, De Vere Hotels was held liable for failing to take steps to prevent the discrimination complained of from taking place. The Equality Act put in place some obstacles to such a claim i.e. that similar incidents have occurred to the employee at least twice before, and the employer failed to take reasonable steps to avoid it happening.    

Evidence of Discrimination

  • The usual burden of proof is reversed – the Claimant only has to prove facts from which a Tribunal could conclude (in the absence of an adequate explanation) that the employer has acted in an unlawful manner for the Tribunal to uphold the complaint, unless the employer proves that he did not do so.
  • Questionnaires are sent out for most discrimination claims which help a claimant formulate and present hisher case.   These must be carefully responded to, as the answers to these Questionnaires can assist a defence at trial or even dissuade an aggrieved applicant from commencing proceedings in the first place.

Can a worker demand information about a successful candidate?

This was the question in Meister v Speech Design Carrier Systems GmbH.  Ms Meister, a Russian national applied for the post of “experienced software developer” but her application was rejected without an interview being given to her. The employer did not dispute that her CV showed that she was sufficiently experienced for the post.  She brought a claim based on discrimination on the ground of her sex, age and ethnic origin and claimed that disclosure of the successful candidate’s file would show that she (Meister) was more qualified than the successful candidate.

It was held that the various  European directives which applied did not entitled her to access to this file. However, these directives cannot be compromised, and it cannot be ruled out that a refusal to grant access to the information may be one factor to take into account in the context of establishing the facts.   In this case, it was a matter for the National Court to decide whether or not the fact that the applicant was at least equally qualified and was not even called for interview was discriminatory.

Avoiding claims at the recruitment stage

It has been suggested that some applicants make a living applying for jobs and claiming discrimination when they do not get them.   An example is the case of Margaret Keane, a 51 year old chartered accountant who apparently made over £120,000 by settling 22 claims that her job applications for newly qualifiedentry level positions were rejected solely because of her age.   However, Ms Keane has been stopped in her tracks for the time being by a Tribunal rejecting 5 further claims after ruling that the applicant must have a genuine desire to do the job applied for.

So what can be done?

The most obvious step is to take care when drafting an advertisement or specification of a job to avoid potentially discriminatory phrases such as “would suit someone looking for their first job” or “ideal for young mothers” or “must be able to carry out heavy-lifting duties when required”  or “we have a vacancy for an odd-job man”.  Even references to e.g. “5 GCSEs required” are indirectly discriminatory to older candidates whose qualifications predate GCSEs – use instead “GCSEs or equivalent”.

If in doubt, consider giving an interview and making careful notes as to other non-discriminatory factors upon which a decision is based, so that a choice can be justified if questioned.

Consider putting in place a well drawn recruitment policy which will not only help to ensure that you do not discriminate but will also assist in showing any Tribunal that you have actively considered this and tried to avoid it.

Please refer to our article on Disability discrimination, which considers recruitment questions about health and disability – what questions you can and cannot ask.

If you want to discuss any employment issues please contact Janet Long on her direct dial 020 3254 1435 of by email at j.long@pj-h.co.uk

The contents of this article are intended for general information only.  It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice.  We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. We will, however, be pleased to advise you on the specific facts of your case.