An employment tribunal found that it was just and equitable to extend the time limit in an employee’s direct race discrimination claim and went on to find that the employee had been discriminated against in what was described as a “shambolic” recruitment process.
The case of Siddique v Oltec Group Trading is a helpful reminder for employers of a number of key points to be aware of when it comes to recruitment, particularly as some employers may be looking to fill vacancies or recruit additional staff as lockdown measures continue to be eased.
It also highlights that whilst time limits for bringing a claim should not be extended as a matter of course, tribunals have a broad discretion to do so if the facts call for it. In this case, despite the claim being brought six months out of time, the judge found it just and equitable to extend time. This was due to factors including the employee seeking to resolve things internally, the delay being due to the employer’s “tardiness” in dealing with the grievance, the claim being brought reasonably promptly after the grievance process had been concluded and the cogency of the evidence not being affected.
The Facts of the Case
The employee who is of British Pakistani descent was employed as a site security officer for a company that specialises in providing facilities management services to clients. Two vacancies arose – Facilities Manager and Security Team Leader which the employee found out about through his former supervisor. He applied for the Facilities Manager role by CV and was one of four candidates to be invited to interview. However, his interview was cancelled by the recruiting manager and rearranged to take place after other applicants had had their second interview. Following this, the employee was asked to put forward a fuller CV, it was the recruiting manager’s position that the client would ultimately make the recruitment decision and that he would forward the applicants’ CV’s to them. In actuality, it couldn’t have been the employee’s more detailed CV that was sent, due to timings.
The employee enquired about the progress of his application and to confirm he wanted to be considered for the Security Team Leader role. The next day the recruiting manager emailed indicating he had been unsuccessful in his application for the Facilities Management role and that he wasn’t ready to announce the selection for the Security Team Leader role, there was no mention of interviews for the latter.
The employee raised a grievance alleging the recruitment process was a farce and raising issues of discrimination and favouritism in recruitment. A grievance hearing was scheduled for four weeks later. The employee resigned, although this was later withdrawn when he felt his grievance would be investigated. In reality, little was done to investigate the grievance and it was not upheld. The employee appealed. So that there was some evidence the appeal manager could base his decision on, HR asked the recruiting manager to produce a rationale for his decision after the event using criteria such as communication skills and management experience that were not used at the time. The grievance appeal was dismissed.
The employee complained to an employment tribunal that he was treated less favourably because he did not get the Facilities Management or Security Team Leader roles and the reason for that was his race. The judge found that the employee had been subject to direct race discrimination, commenting amongst other things that:
- There was ample evidence to conclude that there was a prima facie case of discrimination. The recruitment exercise was a “shambles”. There was no heed paid to the Equality and Human Rights Commission Code of Practice on Employment. There was no paperwork available for any of the recruitment stages at all and nothing to evidence why successful candidates got the role and the employee did not, there were no set criteria at any stage. The judge was unconvinced the tribunal had been told the real reason the employee’s interview was put back and there was no logical explanation as to why his first interview for the Facilities Manager role took place after others had had their second interview.
- The recruiting manager’s evidence was largely unreliable. He had not demonstrated to the Tribunal’s satisfaction that he ever did send the CVs to the client or that the client had had any part at all to play in the recruitment decision making.
- The judge was also critical of the request that the recruiting manager retrospectively provided scores for criteria that he had not specifically used at the interview stage to give the appeal manager something for the grievance, describing such conduct as reflecting very poorly on the employer.
- The burden of proof had passed to the employer to show on the balance of probabilities that the recruitment decisions were in no way linked to the employee’s race. The employer failed to show that this was the case – there was no explanation at all for why the employee was unsuccessful in his application for either role.
The employee was awarded over £12,000.
It’s important to ensure that recruitment decisions are fair and non-discriminatory and that they are appropriately documented. Providing training to those responsible for making recruitment decisions can help to prevent issues from arising.
If you are planning to recruit in your organisation here are four top tips:
- Remember that applicants can complain about discrimination in the arrangements made for recruitment, discrimination in the terms of employment offered and discrimination as a result of a refusal to offer an interview or failure to offer employment.
- Be alert to any potential discrimination issues throughout your recruitment process. This means ensuring that your job adverts are non-discriminatory, you ask only the necessary job-related questions during the interview and that you treat all applicants fairly, irrespective of any protected characteristics such as race.
- Bear in mind that you are under an obligation to make reasonable adjustments to prevent a disabled applicant from being put at a substantial disadvantage. This can mean for example making application forms available in a different format, such as in large print or accepting an application in a different form, as well as making reasonable adjustments to the interview process or arrangements.
- You should have a paper trail throughout the recruitment process to ensure that you can evidence that a fair and appropriate process was followed and to evidence your decisions.
If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.