Case law update: Discrimination in Recruitment

The case of James & Saine v London & Quadrant Housing Trust involves unconscious bias and highlights that employers need to be able to demonstrate that decisions on recruitment have been made fairly, based on criteria which have been applied to all applicants.

Allowing subjectivity to creep in can risk allegations of discrimination based on a protected characteristic (e.g age, sex or race).

The Respondent advertised three vacancies for leadership positions. There were six internal candidates, three were white and three were black (and/or black/white mixed). The Respondent appointed two white candidates. The two claimants (who were both black) were not appointed. The Respondent decided to re-advertise the third vacancy externally despite having found that the claimants were not ‘not appointable’ to it.

The claimants claimed that the decision not to appoint them was direct race discrimination. The tribunal agreed. The Respondent based its decision on who to appoint on a subjective view of who would ‘fit in’, rather than objectively considering qualifications and suitability for the job. The tribunal stated, “basing recruitment decisions on subjective views, or gut feelings, increases the risk of stereotypes and unconscious bias coming into play”.

Stating things like “[I] didn’t feel 100% comfortable” or “Unless I am 100% certain”, the tribunal ruled that the Director of Homeownership, Ms Purbrick’s opinion ran the risk of prejudice and stereotypes. When considering the claimants’ experience and performance during their interviews, the tribunal found this was the case.

Despite this, they didn’t believe Ms Purbrick had consciously treated the housing managers less favourably because of their race. Nevertheless, they ruled her decision amounted to unconscious racial bias. As such, the first and second claimants succeeded with their workplace discrimination claims.

The claimants were awarded £95,000 in compensation.

The case prompted comment from Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, who said:

“No one should be denied career progression because of their race.

Employers have a responsibility to ensure their interview processes are fair and that they have systems in place to prevent discrimination from occurring.

Poor recruitment practices at L&Q meant that the organisation lost decades of experience from their workforce, and their handling of the situation has negatively impacted Natalie and Joanna’s health and future careers.  

As Britain’s equality watchdog, we will continue to use our unique powers to uphold the law and prevent discrimination in the workplace.”

This case reminds HR teams that recruitment processes must be free from discrimination and minimise the risk of unconscious bias. Recruitment and interview processes should be reviewed to make sure that they stand up to scrutiny and are based on an objective assessment of suitability.

If you have any questions in relation to recruitment or any other area of employment law, please contact our employment team.