recruitment discrimination?

[markedimprovement]

Hi all,

I am writing partly to vent but also to see if i may have a case for sexual discrimination or am being oversensitive.

I recently went for a position with a new company. Position in Sales/Financial services. This was a dual specialism role which was in their words very difficult to recruit for and the position had been free for ages before i applied. Now my CV is quite unusual in that I am qualified for this role - which is new in the organisation. This is not me being up myself but a fact agreed by the recruitment consultant and my interviewer. I was told I was the only applicant and that they couldn't believe they had round somebody with my skills yada yada yada. I had a a total of three interviews (still the only candidate in the frame) which went very well and at the end of the third i was told I would hear later that day. So fast forward two weeks later and I was just been told that I was unsuccessful in getting the position. Apparently another candidate was chosen. I have since found out that this candidate has no prior experience of the role, none of my qualifications etc which I found really odd other than I'm sure they will be a lot "cheaper" than me.
Now where my discrimination query comes in is that I suspect they may have only hired this other candidate as they are male. This is a male dominated organisation all of the managment team are male and my panel of interviewers were all men. During one of my interviews I was asked "what my personal set up was" which led into a conversation about my DH and DC. I have since read that they should not have asked me this and I should have declined to answer. The other inappropriate thing that springs to mind is that upon leaving my last interview the main interviewer offered to remove my visitors badge for me which was fastened to my waist as i had my hands full! I declined this offer but thought at the time this was inappropriate.

Anyway, do you think I have a case and if so what should my next steps be?

I know I've probably had a lucky escape as this organisation would probably be a nightmare and my driver is not compensation but I just want them to admit that I was the best person for the role, to mend my bruised ego I guess!

Thanks for reading x

[littleomar]

as you say, sounds like you're well out of there - dreadful recruitment process doesn't say much for the organisation.

i don't know what you'd need to bring a case (i'm sure someone else will) but as a first step you have the right under Data Protection to request personal data that the organisation holds on you, which includes stuff like notes taken at interview. see www.ico.gov.uk for details. but it probably won't help much as you won't have anything to compare it to (ie the successful candidate's details).

[markedimprovement]

Thanks for your reply - hopefully more will be along soon :)

[igggi]

What was your personal set-up?" Is an unacceptable question to ask. From everything you describe you have been discriminated against, as you seem to have been the best candidate. Why not google the Equality and Human Rights Commission, they have helpline number and could talk through what your options are regarding making a claim.

[KatieMiddleton]

Have a look at this link: www.businesslink.gov.uk/bdotg/action/detail?itemId=1087483113&r.i=1073792193&r.l1=1073858787&r.l2=1073877851&r.l3=1074003268&r.s=sc&r.t=RESOURCES&type=RESOURCES

Essentially the onus is on the employer to prove that they acted fairly when recruiting. If you believe that the candidate recruited is not suitably qualified and is a different sex then you can make a claim to a tribunal of sex discrimination under the Equality Act 2010 if you feel that strongly about it. The employer will have to evidence that they did not discriminate against you. However, you need to decide if it's worth your time and effort although the actual process is fairly straightforward - you complete an ET1 form (you an get this from Tribunal Service website) with your claim that is then sent to the employer who has to respond (using an ET3 form). What happens next is either the case is thrown out because the Tribunal service don't believe they can lawfully hear the case or the case is sent for hearing or mediation occurs. The other thing that might happen is the employer approaches you to settle the case before hearing.

Things to think about:

The job specification. What were the essential criteria for recruiting for the position? Did you have all of the essential criteria and did the other candidate who was recruited have all the essential criteria too?

What outcome you want.

[KatieMiddleton]

The "what's your personal set-up" question while inappropriate and not good practice is not necessarily discriminatory if all candidates were asked this question. Although if making a tribunal claim do mention it.

The bit about offering to take off your badge doesn't sound either discriminatory or like harassment to me and I think if you mention it in any claim it will make you look vexatious. But that is just my opinion.

[igggi]

Surely it is indirect discrimination even if all candidates are asked the question, as a different judgement will be made on a woman answering "I have 2 small children" than a man giving the same answer. And what if your answer revealed you lived with a disabled parent, and then you are not given the job - that could be discrimination by association. A stupid question for any employer to ask these days.

[KatieMiddleton]

It is a stupid question to ask but it is not automatically discriminatory. The action taken after a particular answer might be. Just best as an employer not to be in the position in the first place.

igggi your example assumes that a different judgement would be made of a woman than a man and therein lies the problem. We don't know what judgement would be made. We don't know if having children or being married or anything else would make a difference. It might, but we can't say for certain and it may be the case that the other candidate also had dc and was married. It may be that it didn't make any difference at all.

But it doesn't matter any way because the burden of proof is on the employer to prove they did not discriminate and all you need for that is someone who is different to you, a relevant protected characteristic (whether it be man/woman, black/white, gay/straight, married/single, pregnant/not pregnant, Scottish/English, Muslim/atheist to give just a few examples) and a reasonable belief that less favourable treatment has occurred.

[markedimprovement]

Thank you Katie ,very helpfull I have couple of questions though:

Do I need legal representation straight away or can I download, complete and send off the forms myself, and then if it goes to mediation/hearing get a solicitor them?

Do I need to attend the mediation/hearing if this goes ahead?

I met all of the 'essential' criteria on the job spec and and the susscessfull candidate met none bar one (although granted he was better than me one thing than me due to his prior knowledge of the company)

The successful candidate was an EX employee of the company (not internal applicant) who wanted to come back, he did nothing like the role we applied for and had no prior experience of this whereas I was doing an identical role within a competitor organisation.

The fact that he was an EX employee makes me think that they probably knew is personal set up and therefore would have not had a need to ask this question liek they did me.

As for the outcome I'm hoping for - I don't really know - what are the possible outcomes there could be?

[KatieMiddleton]

You can download, complete and send the forms off yourself. If you use a solicitor or legal representative it will cost you money and you have to pay your own legal costs at tribunal. The process is meant to be accessible for the lay man to navigate although that's not always the case IMHO. However, because in this case appears to be relatively straightforward and it's (currently) free to go to tribunal you may decide it's not worth the expense. You can also call ACAS or the Equalities and Human Rights Commission for advice or CAB and some solicitors will give you the first half hour free. You may also have cover on your home insurance you could use or a legal helpline.

If you wanted you could use a solicitor to help you draft your claim and complete the forms - you would know what the cost would be for that and could make a decision about whether it's worth it. You would be unlikely to need a solicitor for mediation, that's usually facilitated by an independent third party and if you went to tribunal you would probably find the tribunal service is very good at making the process clear and understandable. Alternatively you could investigate if you could make a no-win, no fee claim. This may be a good option if you just want to make your point and are not too bothered about compensation.

From what you've said your case at first glance appears very straightforward: You met all the essential criteria of the job spec (do you have copies of this?), the other candidate met only one of the essential criteria (how do you know this?). He is a man, you are a woman and so you believe you have been discriminated against because of your sex. It's then up to the employer to prove that they did not discriminate because of your sex.

Yes, if it went to mediation or hearing you would need to attend or withdraw your claim.

Possible outcomes are: settlement and compensation from the employer (either pre-hearing, during mediation or hearing process or after tribunal ruling), you lose a tribunal case, you get part way through the process and you withdraw your claim.

There is a strong possibility that they wanted to take back a previously good employee, this job was going and they thought they'd use it to slot him back in. In which case it's not actually overt sex discrimination but rather stupidity because they have left themselves wide open to a claim.

[markedimprovement]

Thank you.

Yes I do still have the job spec.

To answer your question I know because re the other candidates experience as the recruitment consultant who represented me told me - I know to take most of what these people say with a pinch of salt as they often just tell you what you want to hear, but I can't see what motive he had fo telling me that the other peson was less qualified than me.

The bottom paragraph of you post, Katie , sounds plausible. If indeed that was their motive, would they still have to prove that they didn't discriminate against me (even without realising) or could they just explain that they wanted the EX employee back and is that a good enough reason for choosing him over me.

[KatieMiddleton]

Yes they would still have to prove they didn't discriminate and no they can't just take him back over other candidates if he doesn't meet the job spec without risking claims of discrimination. If they really wanted him they should have withdrawn the job that you applied for and created a new job they knew he'd meet the specification for and recruited him to that.

Sounds like they have a very cavalier attitude to recruitment.

[markedimprovement]

I have read some FAQs on tribunals on gov website and the sections on costs says:-

"Will I be expected to pay to go to Tribunal?
In most Employment Tribunal cases, each side will pay their own costs. However, in certain circumstances, the tribunal may order one side to pay costs to the other. Those circumstances can include if one side has behaved unreasonably in the way they have carried out the case or if a tribunal thinks that a claim was so weak that it should not have been brought."

So if they are currently free as Katie says what costs are their likely to be to just attend? Also is it likely that I could end up having to pay the other sides costs as well? I don't think my case is weak but could the judge?

[KatieMiddleton]

You would have to be found to have brought a vexatious or malicious claim to have to pay costs.

ie you bring a case you know is not true or you bring a case as a means of harassing someone.

However, you have the job spec as evidence, the statement from the recruitment consultant (they may be called as a witness) and the tribunal will ask the employer to submit the recruitment notes plus there will be testimony at the tribunal.

I don't think you need to worry overly about having to pay the other side's costs (and I really don't think they would have to pay yours) but if in doubt take independent legal advice from an employment lawyer.

[markedimprovement]

Thanks, so, assuming I am not found to have brought a vexatious or malicious case what sort of costs would I be looking at?

I have only been told info from recruitment consultant informally, I don't know if we would back this up officially in fear of risking his contract with the company.

I have downloaded the form, what should I be putting in the section that asks about the compensation I am seeking?

I thought about the increase in salary I am missing out on (they pay 7k per annum more than my existing job) X the number of years I am likely to have worked there.

Is this right or am I thinking about this wrong?

[markedimprovement]

How much details should I be going into on the form with regards to the nature of the incident - as much as possible or just briefly?

[StillSquiffy]

If I had worked with someone before and found them to be a good employee, a fast learner and a natural fit for the culture of the firm, I would - ceteris paribus - offer that person the job against someone I had not known previously. I would also take cost into consideration. And in many of the jobs I have recruited into we have changed the job spec to match good candidates, rather than recruit the person with the best fit on paper.

Qualifications for a role might suggest you would have the edge in terms of capability, but that would be only one of the factors in the hiring decision, and indeed offering a job solely on a qualifications basis could lead to claims of indirect age discrimination by an unqualified candidate.

The 'set up' question was crass, but I don't think provides sufficient evidence in itself. Had the other applicant had no prior relationship with the firm then I think your case would have been stronger. As it is, I'm not sure you are in a very strong position. By all means, pursue it, if you feel that there was an undercurrent of discrimination, but don't add up your potential pot yet.

[ButHeNeverDid]

Agree with StillSquiffy.

I would always employ a good ex-worker over a new unknown one.

A new role can always be written around the strengths of the ex-worker if that is the person you want in your organisation.

I doubt you would have much luck getting any other role through this recruitment agency if you persued your claim. Or indeed with this employer if they feel they need to open up a new role.

[RibenaHasLeftTheBuilding]

Just be careful on this one OP. Bear in mind that employers are not legally obliged to recruit the person who closest fits the job description. Indeed, they can throw the job description out of the window and recruit to something totally different if they want to. All employers have to do is not discriminate when making their decision.

Whether they have to prove that they didn't discriminate depends on whether you successfully shift the burden of proof. Put simply, you have to show something a bit suspicious first, and if you manage that then they have to prove their innocence. If you can't get as far as 'showing something suspicious' then they don't need to prove anything. With the 'family set up' question and not following the job spec you may get over this first hurdle, but if I was advising them I'd tell them to fight that point. Wanting to re-hire an ex-employee - plus if you're right that they can get him cheaper - would be a pretty good explanation if true.

Regarding the 'personal set up' question, it was baldy worded that is true and it has exposed them somewhat. But questions about personal set up can be relevant if they link in to the job. So, for example, if a job legitimately requires you to work late at short notice it would be ok to ascertain whether you could manage this. If there is some underlying legitimacy to the question, it won't be such a stretch to show that it was poor wording rather than discrimination.

I'm not trying to be the voice of doom and gloom on this. But I do think it's worth knowing the other side of the analysis so you know what you are getting into.

Good luck if you decide to press ahead.

[markedimprovement]

Thanks for these recent posts - it's good hearing the other side.

I'm not banking on winning and getting any pot - just wanted to know whether I've need to have thought of this before filling in the form.

I have no desire to be found a role with either this recruitment consultant or the organisation so this will not form part of my decision to proceed.

If they did change the job spec to suit the other candidate -would there have been a record of this? Should I have been notified/it form part of my feedback?

The job involved no long hours/short notice although the spec did say "occasional travel" could this justify asking the personal set up question?

Could they just deny asking the personal set up question? It was a 1-1 interview so their word against mine if they deny it.

x

[StillSquiffy]

If they did change the job spec to suit the other candidate -would there have been a record of this? Should I have been notified/it form part of my feedback?

Not necessarily, and no, there is no need to notify you.

The job involved no long hours/short notice although the spec did say "occasional travel" could this justify asking the personal set up question?

Yes, and that would be their defence if you pursued it.

Could they just deny asking the personal set up question? It was a 1-1 interview so their word against mine if they deny it.

Yes, of course they could. But to be honest I can't imagine they would bother lying. They will simply say they check that with everyone because of the need for travel.

TBH I really don't think you have a case, especially if the job description specified occasional travel, as this potentially gets them out of the soup on the 'personal set-up' question. If I were the HR head or Lawyer at the company in qn I would hit the roof at a claim on this one and would be very assertive in my response. I think you are unlikely to get any compensation, and certainly won't get them to admit you were the best person for the role (as per your OP) - they are far more likely to point out every (non-discriminatory) defect you have than do that. Not worth it IMO.

[KatieMiddleton]

I'm glad there's a few posts specifically about the downsides of making a claim. I've been a bit literal in my posts about process and although i mentioned right at the beginning of the thread about feeling strongly and whether it's worth it I think I should have pointed out some of the pitfalls more strongly rather than just replying to questions raised.

I would agree if you make a claim the chances of you working there in the future are practically zero and burning your bridges may not be the best idea. If it's not about getting compensation then is it worth the time spent making a claim? (I don't know the answer to that but it's definitely worth thinking about).

There is also no rush. There are three months less one day to make a claim so plenty of time to think about it and get some specific, independent legal advice. Up thread I have suggested several places to contact to get some advice.

[flowery]

Definitely consider what you want to achieve. You say it's not about compensation, and in your OP you say you 'just want them to admit you were the best person for the role'

If you bring a legal claim I think your chances of achieving that are slim to none.

I think if you are at the stage of completing an ET1 form already you are rushing imo. From your OP your last contact with them was them informing you you had not been successful. You've had informal feedback from a third party not privy to any decision making at all and not even part of the organisation.

I think the first step should surely be contacting the organisation directly, and asking what happened. Speak to the manager who interviewed you, say you were very encouraged by comments made during the interview process and were very disappointed to then be told you were not successful. Ask why. See what they say were their reasons.

Of course they may not tell you the truth, but their response will be enormously helpful in your decision making process. Similarly if you do bring a claim and have asked the organisation for reasons first that will look better to a tribunal.

Once you've done that, if you still feel there is reason for suspicion, I still wouldn't jump in with an ET1. I would instead issue them with a discrimination questionnaire, which is a formal document sent to the organisation, setting out that you feel you have been discriminated against, detailing the actions you believe were discriminatory and asking for their explanation of events. You can find out about questionnaires from the Equality Human Rights Commission.

Once you've done that, if their answers make you think you have a case or if they don't respond, and you want to bring a claim, you can do so.

[flowery]

Meant to reiterate at the end, I would strongly advise not bringing a legal claim based on what a recruitment consultant has told you.

[ButHeNeverDid]

A million moons ago ..... a went for a job that I thought I was very suited for and the interview went fantastically. The interviewer even said "Look forward to seeing you again".

I did not get the job.

I was told there was a better candidate than me. But that they liked me and they may come back if another role opened up.

Bang on 6 months - I get a call followed by a job offer.

You say that you would not go for a job with this employer or the recuitment agency in the future. Why? You seem to have been very interested in the job originally. I would really advise not to burn your bridges.

Especially as you really dont have a case. So will just piss off everyone and will still not get a job. What are you trying to achieve?

[markedimprovement]

Thanks,

Squiffy - you have scared me saying that you would hit the roof if you got a claim of this nature. I don't want to appear malicious or sour grapes just because I didn't get the job. Is this what they'll think

The occasional travel requirement really goes without saying with this job and my response to the "personal set up question" would have put any doubts at rest - don't know if this goes for or against me.

Re the job spec- it is not a minor tweak or either several changes that would need to be made to suit the other candidate. It would be the the actual job title.

IMHO it would be akin to recuiting for a teacher andf rejecting a qualified teacher who applies in favour of an EX-Dinner lady who they want back!

I nkow this is an extreme example but is really what it is like and how how feel.

I can't really exaplain my motives other than an urge to know if I was dicriminated against and If I was I would want to stand up for myself - no matter how long or tough the process.

Flowery - It seems obvious when reading your post that I should contact the organisation for feedback. I hadn't even though of the (blush) but this is the action I will take.

NeverDid - Did you ask for formal feedback following your experience.