What can an interviewer note down about a job applicant? The recent sex discrimination case involving a series of gender-specific remarks is a warning to employers, says Kristie Willis.
Successful discrimination claims can attract uncapped awards and there is no minimum service requirement, meaning a claimant need not have even been an employee. The recent case of Lucia Pagliarone v Immuno Biotech, has been widely reported and again highlighted the issues employers’ face when recruiting.
Although the case was heard on Guernsey and is therefore not binding on law in England and Wales, it is likely that an English and Welsh employment tribunal would find evidence of discrimination when faced with similar facts.
Mr Noakes, the managing director of the respondent in the case was found to have made insulting, gender-specific comments on several occasions, which caused a detriment to the claimant.
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The claimant said that, shortly after commencing her employment, she found her CV in a pile of papers on Mr Noakes’ desk and on it was a note saying “Red lipstick, heels – good; tattoos, do not approve; wearing a dress – excellent.”
She also stated that Mr Noakes remarked after interviewing a woman “We can’t hire her as she is ugly and overweight and I only employ beautiful women.” The claimant was awarded compensation of £10,500.
What you should do to avoid sex discrimination in recruitment
Employers should be aware of possible discrimination throughout any application process. Job adverts should be considered carefully to ensure that they are not discriminatory, for example employers should avoid using words like “young” or “mature” as these may amount to age discrimination.
It is advisable for employers to have standard interview questions that are asked of everyone applying for a particular role and for notes to be made only regarding the answer.
No personal comments should be made about a particular interviewee on any interview notes. It is important to remember that these documents would be disclosable if any job applicant pursued a discrimination claim. In addition, it is likely that notes of all other interviews for that role would be disclosable in an anonymised format along with the candidates’ application forms and CVs.
There is a risk of discrimination occurring at any time during employment and it is therefore important that managers receive adequate training on what amounts to discrimination and ways to avoid it. Interviewers should also receive adequate training on interview techniques and comments or assumptions that could be discriminatory. The employer’s training records are likely to be disclosable in any employment tribunal proceedings.
Employers should be particularly aware of the risk of sexual or sex harassment claims arising. Managers should be given training on how to identify these issues and how to respond to any situations that arise. It is beneficial to have a policy in place that sets out required standards of conduct from employees including at social events or outside of the office environment, such as at the Christmas Party.
Sex discrimination in emails or website links
Discrimination allegations regularly revolve around comments in emails or access to certain websites. In order to minimise the risk of this occurring, employers should have a policy which permits monitoring of the IT systems, including email, and to regularly remind employees of the monitoring.
Ideally, automated monitoring systems should be used to highlight phrases of concern in emails and to block any inappropriate web pages. Employees should be clearly advised which internet sites they are permitted to access and should be informed that they cannot send or forward joke or chain emails to minimise the risk of offensive emails being sent.
A social media policy that highlights how employees are able to reference their work should also be considered, particularly where employees are dealing with clients and members of the public, to minimise the risk of derogatory or discriminatory comments being made.
The risk of a data subject access request
It is common in discrimination claims for employees to try and obtain early disclosure through the use of a data subject access request under the Data Protection Act. This requires an employer to disclose all personal data relating to an employee. This is likely to be onerous and could even include emails between colleagues that may make comments about a particular person and of which the employer may not previously have been aware.
It is also important to note that emails to and from the HR officer or department would not benefit from the protection of legal privilege and would need to be disclosed. HR professionals should therefore be particularly careful about any documents or notes they create and any emails they send. Documents disclosed as part of a data subject access request could substantiate an employee’s claim and encourage them to pursue tribunal proceedings.
The “reasonable steps” defence
An employer is generally liable for any act of discrimination or harassment carried out by their employee, however if an employer can show that it took all reasonable steps to prevent an employee from committing a particular act or type of discriminatory act, it will avoid liability. This is known as the “reasonable steps” defence.
Reasonable steps will usually include:
- fully implementing equal opportunities and anti-harassment and bullying policies along with reviewing these on a regular basis;
- making sure all employees are aware of the policies and their implications; and
- training managers appropriately and acting upon any complaints promptly and effectively.