UK tribunal decision ‘offers comfort’ to employers addressing underrepresentation

In this case (14 pages/ 156 KB), a prospective employee, Mr Palmer, had been unsuccessful in an interview for a senior HR role. The role was ultimately given to a woman, with Palmer subsequently bringing race and sex discrimination claims primarily focussed on an allegation that the company had told him that it “intended to hire fewer white males”.

There was some dispute between those who had overhead the comment as to what exactly was said. Palmer alleged that the word “intend” had been used, with the person alleged to have made the comment denying making it at all. Others referred to the comment along the lines of the company having a “hope” or “desire” to hire fewer white males. The tribunal considered there to be a difference between “hope” and “intention” and on balance felt that whilst it was clear something had been said, it was likely to have been nearer a “hope” than an intention.

The result was that both the discrimination claims were dismissed. The burden of proof did not shift to the employer to show a non-discriminatory reason for its hiring decision. Despite the decision not being binding, it offers “some assurance to employers who are openly committed to a progressive equality, diversity and inclusion strategy”, employment law expert Amy Hextell of Pinsent Masons said.

There were specific features of the case that helped to support the tribunal’s decision, such as the fact Palmer was put through to the second round of interview and contemporaneous written notes about concerns over hiring him were supported by the company’s actions – for example, by changing the job advert after interviewing Palmer to make clear the role was operational not strategic, and appointing on a salary of around £80,000, not the £100,000 that Palmer had suggested he wanted.

Hextell said that some of the tribunal’s comments offer “comfort” to employers looking to actively address underrepresentation and improve diversity. The tribunal noted that it was not a concern for diversity to have been discussed with someone who was being interviewed for a senior role, holding that an aspiration to improve diversity does not equate to an intention to discriminate. Although the case did not in fact concern the lawful use of positive action, as distinct from unlawful discrimination, it is encouraging to those employers looking to take lawful positive action to address under-representation and disadvantage. This may include adjusting job language in adverts or targeting job advertising in specific publications or places, Hextell said.

Hextell added: “Employers do need to be mindful of how important it is to ensure that everyone involved in the recruitment process is on message and chooses their language carefully, for example around the distinction between a target and a quota, as poor choice of language can really make a difference as this case alone demonstrates.”

To take lawful positive action, employers must also be able to provide evidence that proper time and thought have been put into their strategic ambitions to improve diversity and take care to avoid blunt tools or discriminatory comments as well as putting adequate time and thought into improving diversity.

The tribunal decision comes at the same time as government amendments to the Equality Act 2010 (338 pages/ 11,208 KB) to enshrine EU principles in UK law.  The changes will enable individuals to bring claims for discrimination based on public statements about an employer’s general approach to recruitment, rather than in relation to a specific process in which they have been involved.  This again is a reminder to employers to ensure that positive action initiatives are based on strong and available evidence.