• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • Elena Elsam
    • David Jones
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Discriminatory or not? – rejecting an “overqualified” job applicant & requiring a new mother to work full-time

23rd October 2016/in News /by Nicola Brown

Two recent Employment Tribunal cases, described below, concerned claims for direct age discrimination and indirect sex discrimination. The cases demonstrate that an Employment Tribunal will seek to explore the reasons why a decision has been made by the employer, and allow claims to be successfully defended where those reasons can be established as non-discriminatory.

As you will be aware, there are different types of discrimination set out in the Equality Act 2010: ‘direct’ and ‘indirect’ discrimination, victimisation and harassment. The definitions of direct and indirect discrimination are set out below:

  • Direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
  • Indirect discrimination is concerned with acts, decisions, practices, or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic.

(The protected characteristics in the Equality Act 2010 are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).

Direct age discrimination

In the Employment Tribunal case of Jones v Care UK Clinical Services Limited [2015], it was decided that a job applicant who was rejected for being overqualified had not been subjected to direct age discrimination.

Mr Jones had applied for the post of marketing services executive. After interview, he was not selected for the job. This was given to another candidate who scored better at interview. The candidate selected was 29 years old and Mr Jones was 51. The interview notes disclosed to the Employment Tribunal showed that Mr Jones had been considered as overqualified for the role, and that his expectations of development in the role could not be met by the business.

Mr Jones raised a claim that he was treated less favourably because of his age, as compared to the candidate selected who was much younger. The Employment Tribunal disagreed, and were satisfied that the business had shown that the reasons he had been rejected was because he was overqualified for the post.

Mr Jones did not, however, bring a claim for indirect age discrimination and the reasons for this are not clear. He may have succeeded if he had brought such a claim, and if his employer had been unable to objectively justify their actions (click here for our previous article discussing when discrimination can potentially be justified).

Indirect sex discrimination

In the Employment Tribunal case of Smith v Gleacher Shacklock LLP [2015], it was decided that an investment firm’s requirement that a new mother work full-time was not discriminatory in nature as the needs of the business outweighed the minor disadvantage that the employee suffered by having to work full-time.

Ms Smith was an executive secretary at the investment firm. Most of her role was described as ‘predictable’, but there was an element that was ‘unpredictable’ where she would be required to assist with fast-moving deals. Ms Jones made a flexible working request when she returned after maternity leave. She wished to work a 4-day week, with one of those days working from home. This was so she could care for her child on Friday, and make childcare arrangements for the other days of the week. Her request was rejected because the firm said that it was vital that clients have a single point of contact, that the unpredictable elements of her role made it difficult to accommodate her request, and that it would put pressure on other members of the team who would have to cover her role on days she was not in the office. The firm did make a concession and allowed her to leave early on some days to be able to collect her child from nursery.

Ms Jones appealed the decision, and this resulted in her changing her request to a 3-day week, with a job share covering the other 2 days. This was also rejected as the firm said handing work back and forth would not be conducive to the needs of the business.

Ms Jones raised a claim for breaches of flexible working legislation and for indirect sex discrimination. Both her claims were rejected, and in particular the Employment Tribunal rejected her claim for indirect sex discrimination on the basis that Ms Smith had not suffered a particular disadvantage (evidence showed she was better off financially working full-time and using childcare services), and that the firm’s position was justified as the disruption caused to the firm by agreeing to her request would have outweighed the disadvantage to Ms Smith.

Conclusion

Both cases shown that the employer had kept good records of why reasons were made, and this undoubtedly assisted them in defending these claims. In particular, the indirect sex discrimination case goes against the grain of other decisions involving claims about flexible working requests from new mothers, so it shows that the evidence from the employers must have been very persuasive. Employers who are diligent about keeping good records about such employment decisions will be pleased by the outcomes of these cases. For those employers who have concerns about whether their records are adequate, there is no time like the present to review your practices and improve. It could save you money and time!

The compensation that can be awarded in successful discrimination claims is unlimited, so it is important for employers to be aware of this area of employment law, and take action to ensure that equal opportunities policies are in place and that staff are adequately trained.

Do note that both cases were at Employment Tribunal level only, and are therefore not binding on other Employment Tribunals. Most cases are quite dependent on their individual facts.

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 [email protected]).

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.
Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail
https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg 0 0 Nicola Brown https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg Nicola Brown2016-10-23 10:00:512017-11-23 15:17:39Discriminatory or not? – rejecting an “overqualified” job applicant & requiring a new mother to work full-time

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • What to expect during 2021 – employment law developments 21st January 2021
  • Did “office banter” about an employee’s memory amount to age discrimination? 21st January 2021
  • Update on Furlough 20th January 2021
  • Restricting Restrictive Covenants? 20th January 2021
  • Q&A: What to expect from a remote Tribunal hearing 20th January 2021
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2021

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refuseing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only