Claimant discriminated against on the grounds of race and sex when she was not offered a role within her employer despite being the highest scoring candidate.

The claimant commenced employment with the respondent in 2015. By August 2021 she was employed as a Homelessness Case Officer. The claimant described herself as black African for the purposes of her discrimination claim.

The claimant had applied for a Team Leader role before unsuccessfully. Another colleague, following that, was given the opportunity to shadow a more senior colleague. The claimant sought a similar shadowing arrangement and had received the agreement of her team leader.  However, an email was then sent stating that the shadowing should be with the postholder as the senior office holder was not doing work which would be part of the roles going forward.  The claimant applied for the role of Housing Accommodation and Enabling Officer with the respondent. The claimant was the only Black British African but there were eight non-white British candidates as part of the applicant pool of 22. There were ten female applicants and one who did not disclose their gender. 4 were invited to interview and the claimant was one of these.

The claimant complained of being interrupted through some of her answers – this was also detailed in one of the interviewer’s notes who suggested that she and another applicant should be re-interviewed to provide answers without comments from the panel. The claimant complained that another applicant could use notes during the interview – there was no guidance before as to whether notes were or were not allowed.  The claimant also complained that another applicant was asked leading questions by the Chair of the interview panel at the end to ensure that all of the questions were addressed fully.

The claimant was scored highest overall but with two of the interview panel actually scoring another candidate higher.  The deviation being that one member of the panel had scored the other applicant much lower and the claimant higher than their other panel members. Despite this the Chair of the Panel decided that the other applicant who was scored highest by two panel members but lower overall was going to be appointed. The claimant sought the interview score sheets but there was reluctance from the HR team to provide same. It was only in the proceedings that the claimant received the unredacted sheets.

The Tribunal found that there was a difference in treatment when it came to the option to shadow a more senior colleague, the conduct of the interview, the scoring in the interview and the appointment decision.  The Tribunal stated that the appointment decision was not that of the panel but rather was a decision made by the Panel Chair in conjunction with an HR colleague which was not aligned to the recruitment policy. The claimant discharged the burden of demonstrating a prima facie case on the basis that the respondent had failed to appoint the candidate who scored highest and she was a woman and a Black African.  There were also internal inconsistencies in terms of the respondent evidence such as two panel members stating they were not aware of the scores of the third (even though there was correspondence to suggest that they did know).  There were also other matters such as the exclusion of the third panel member’s views who happened to be of an ethnic minority background and that the Chair of the panel had made assumptions about the skills and knowledge of the claimant.

The Tribunal then decided that there was no credible or cogent evidence that had been produced to justify a departure from the respondent’s recruitment procedure and there was no real attempt to reach a unanimous panel member view. As a result, it was found that the respondent had unlawfully discriminated against the claimant because of her race and sex by virtue of the decision to deny her appointment despite being the highest scoring candidate.

When it comes to internal recruitment there can easily be difficulties within that process or that occur after due to the relationships that already exist between the applicants as well as between the applicants and the decision makers. The importance of following the recruitment policy is clear here in that it was for the highest scoring applicant to be appointed rather than it being a majority decision of two panel members to one.  This led to the difference in treatment to be made clear and the fact that the respondent could not provide a logical and reasonable argument for why that decision was made led to the Tribunal making a finding of discrimination against the claimant.

You can read the case in full here.