Avoiding Discrimination in Recruitment

Under the Equality Act 2010, an individual is discriminated against if they are treated less favourably because of a protected characteristic. The protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

In Dr K Sharma v University of Portsmouth, Dr Sharma was a lecturer at the University of Portsmouth. In 2015 she successfully applied for a role with a fixed term of five years, commencing on 1 January 2016 and continuing until 31 December 2020. Towards the end of this term, the post was advertised internally. Dr Sharma applied for an interview for the post. Following the interview process, two candidates remained: Dr Sharma and Mrs C. Dr Sharma is an Indian woman, who speaks with a notable Indian accent. By contrast, Mrs C is a white British woman.

One member of the interview panel thought that Dr Sharma was the best candidate. The other two panel members, including Professor R, Dr Sharma’s line manager, felt that Mrs C was the better choice. All three members of the panel ultimately agreed to appoint Mrs C.

Dr Sharma was unhappy with this outcome, and requested feedback, which she did not receive. She then filed a complaint under the University’s grievance procedure on 19 November 2020, claiming that her national origins and diverse background had been factors in the decision not to reappoint her. In particular, she alleged that Professor R had treated her less favourably because of these factors, both during the application process and over the previous five years of her employment.

An internal investigation commenced, but, unsatisfied with its progress, Dr Sharma brought a claim for direct discrimination to the Employment Tribunal.

Dr Sharma’s claim succeeded. The Tribunal found that there had been several instances of less favourable treatment by Professor R towards Dr Sharma, including:

• requiring her to report on work before travelling to India on the death of her father;
• contacting her regarding work matters during bereavement leave;
• failing to provide her with support during the critical illness of her baby son;
• discouraging her from undertaking a fellowship qualification; and
• failing to notify her of the internal advertisement for her role.

For each of these instances, there had been comparable situations in which Professor R had treated white employees more favourably. This pattern of behaviour suggested that Professor R was subconsciously biased in favour of the white candidate, Mrs C, during the recruitment process, indicating that Dr Sharma had been treated less favourably because of her race. The lack of notes taken during the interview process meant that the University had little evidence to rebut this assumption from the Tribunal, particularly as Dr Sharma was incredibly qualified for the role.

The Tribunal also noted that, in both instances of an ethnic minority candidate reapplying for a role at the University, they had been rejected. By contrast, eleven out of twelve white staff reapplying for their roles were successful. The Tribunal considered this to be a statistically significant finding, which should have alerted the University to the possible existence of unconscious bias in their recruitment processes – something which the University should have taken steps to address.

The case demonstrates how discrimination in the recruitment process may not always be deliberate or calculated – bias may be subconscious or unconscious, and recruitment statistics may be indicative of such bias and thereby form the foundation of a discrimination claim. Of course, this does not mean that employers are required to hire a minimum number of individuals of certain races, sexes, sexual orientations, or religious beliefs, etc. However, it does mean that employers should ensure that they keep good records of their reasons for recruitment decisions, including notes from interviews and other selection processes, to be able to demonstrate that the reasons for recruiting one candidate over another are based on non-discriminatory criteria, including their skills, experience and ability to do the role. Where employers’ recruitment statistics show that they are overwhelmingly recruiting, or not recruiting, employees of a certain race, sex, orientation, or belief, etc., they would be wise to investigate to see if there are potentially underlying reasons for this pattern that need to be addressed.

This case is also an important reminder to employers of the vigilance with which they must approach their recruitment processes, as they can be vicariously liable for the acts of employees. In the event of a claim, it is a defence for the employer to demonstrate it took “all reasonable steps” to prevent the discriminatory act. This would include having comprehensive equal opportunities policies and procedures in place and ensuring those involved in recruitment have been properly trained on equal opportunities and discrimination.

If you would like advice on the law surrounding discrimination, would like assistance with ensuring your staff are appropriately trained in order to mitigate the risks of a claim, or you require any other employment law advice, please get in touch at [email protected].