A recent survey of 2,000 managers who have responsibility for interviewing found that 85% of them admitted to having asked inappropriate questions of a candidate at interview. Can you be sure that managers at your organisation wouldn’t do the same?

While it is of course important that line managers are involved in the recruitment process in order to find candidates with the right skills and experience for the role, it is important that they are properly trained in putting equal opportunities into practice.

The main topics to avoid at interview are things that relate to a protected characteristic of the candidate. The protected characteristics under the Equality Act 2010 are: sex, race, disability, age, religion or philosophical belief, sexual orientation, pregnancy/maternity, gender reassignment and marital status. An unsuccessful candidate could bring a claim if they feel they have been turned down for the job for a reason relating to any of those characteristics.

Here are some examples that we have come across previously which have got interviewers (and their employers) into hot water:

 – Do you have children? or Are you thinking of starting a family?

Even in 2018 these questions are still asked far more often than you think, and are usually (but not exclusively) targeted at women. Neither of these questions relate to the individual’s ability to do the job, and therefore should be off-limits.

– Are you married? or Are you in a relationship?

Similar to the above, these questions about a candidate’s personal life cannot be relevant to the job and therefore suggest discrimination.

– How old are you?

Although there are some situations where this question might be justifiable, those will be relatively unusual. For most jobs, it is not relevant how old someone is, so there is no need to ask. (In practice, it is usually not difficult to work out someone’s approximate age from their education history anyway!).

– Where are you from? or Where’s your accent from? or Where were you born?

Although some interviewers seem to see these questions as small talk, they could leave them open to accusations of discrimination on the grounds of ethnic or national origin. It is best to leave the topic well alone – again, none of these subjects relates to someone’s ability to do the job.

– Are you fit and well?

This one is a bit more tricky. Employers are entitled to ask candidates whether there may be any reasonable adjustments required, such as for the interview process, but this needs to be handled carefully in case it comes across that the employer is trying to filter out candidates who might be disabled. Employers can also ask pre-employment health questions where they are intrinsic to the role, such as “Do you have any health problems which might prevent you from climbing ladders?” but this will of course depend on the nature of the role concerned. It is generally best to stay away from generalised questions about health.

 

If you aren’t sure whether your managers might ask questions like the ones above, it sounds as if a training session could be in order. In which case, we can help! Over the years we have helped a number of organisations with their equal opportunities training, which is also a key part of a defence against a discrimination claim. Do get in touch to find out more.

If you would like to find out more about employment law training, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

 

No, I don’t mean equal treatment in terms of discrimination and the Equality Act (although that is important too of course!), but rather the importance of consistency when dealing with disciplinary issues.

Common sense says that if you have more than one person misbehaving in a similar manner then, in the absence of any good reason not to, any disciplinary sanction should be the same. Treating different employees differently for committing the same or similar acts of misconduct has always been one of the factors which an Employment Tribunal will look at when deciding whether or not a dismissal was unfair. As part of considering the reasonableness of the decision it is not necessarily enough to show that the sanction merited dismissal, the sanction also needs to ‘fit’ with the approach the employer has taken in dealing with issues with other employees.

This principle was illustrated quite dramatically in the recent case of Doy v Clays Limited. Mr Doy had been employed by Clays Limited since 2004. He raised issues about how he should be paid for working night shifts, and his queries were answered by his line managers, Mr Smith and Mr Bullen, in a letter which Mr Doy received on 14 April 2016. When Mr Doy arrived for his night shift that evening, he told colleagues that “he hoped that his line managers died” and that “he may have to kill them and he hoped that their children got cancer and died.” Not surprisingly, his employers took this seriously and suspended Mr Doy on full pay pending an investigation. Mr Doy then was signed off with stress.

A disciplinary meeting was scheduled, but before this took place Mr Doy handed in another sick note to an administrator and told her “I will expose this company to the media and on social media. I will show them how corrupt this company is.” He added that he would “find out where Bullen lives and go and tell his missus what kind of a bloke he really is.” When Mr Bullen heard of these threats he decided to move his family out of their family home.

Soon after this encounter a disciplinary hearing was conducted, at which Mr Doy was dismissed for gross misconduct. Mr Doy brought a claim of unfair dismissal, arguing amongst other things that he had been treated more harshly than other employees. His claim was dismissed by the Tribunal. Mr Doy appealed to the Employment Appeal Tribunal (EAT), again on the grounds that he had been treated more harshly than other employees in similar circumstances. He gave examples of an alleged incident where during an altercation between two employees one said: “Who are you going to kill next in your car?” to which the other answered “I hope your next wife”. He also alleged that the same shift manager had seen one woman punch a colleague in the face before hitting another weeks later. Mr. Doy claimed that none of the employees in these alleged incidents had been dismissed.

The EAT held that the Employment Tribunal which had dismissed Mr. Doy’s claim for unfair dismissal had not adequately investigated whether there was a disparity in the way the company had treated him when compared to other employees. They therefore ordered that the case should be reheard by a different Tribunal. It may well be that the new Tribunal will conclude that Mr. Doy was fairly dismissed, but the case is a good illustration of how employers can pay a heavy price for allegedly treating employees inconsistently. Even though they may ultimately be found not to have unfairly dismissed Mr. Doy, the very fact that they had to go through two Tribunal hearings and an appeal to the Employment Appeal Tribunal should be enough incentive to ensure that they can demonstrate that they treat employees consistently.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.