Claim of discrimination at interview, can the job be removed from the successful candidate?

[ChangingHistory]

Long story short, there was a recruitment round in my area last year, a very suitable person got the role and he's doing a good job.

Another very suitable person didn't get it and is claiming discrimination, going through the internal complaints procedure and says he'll go to an employment tribunal if necessary.

The unsuccessful guy has been told part of the settlement will be that he gets the job. Is that possible? What would then happen to the person in the role?

IANAL, but there is no precedent in UK case law where a complainant, who was never employed by a company but claims discrimination in the recruitment process, is awarded the job through a settlement and the initial successful candidate loses said job.

If they win, they’ll probably get a settlement.

It is a possible outcome of a court case if the claimant is successful, yes.
However the court wouldn't technically be directing that the successful candidate be removed, only that the claimant be appointed.
It's then up to the employer what they do about the person who is currently in the role. That could be redundancy, offering a sideways move etc.
The speed of the courts at the moment means it could be over a year before the case is heard so unless a date has already been set, a lot could happen in the interim.

No idea what employment law the PP is basing that nonsense on! A court absolutely can not direct a company to give a job to someone!! If found guilty of discrimination, the court will awards costs and compensation to the person they discriminated against, which could be sizable.

What grounds ? And how can they prove it ?

I can't see how that would ever work in reality. Far better for the rejected candidate to get compensation.

If it was last year (2024) and he's not submitted an ET1 I think he will find that he is now 'out of time'.

Can't imagine this ever happening as can't see the case succeeding. IANAL either but if a suitable candidate has actually been appointed, how on earth would you prove that the unsuccessful candidate might well be qualified etc but just didn't do quite as well in the interview on the day? The lawyer must have balls of steel to be making these promises.

It has now reminded me of a similar story someone told me where the unsuccessful candidate said they would sue for discrimination. Employers said they couldn't disclose why but they were 100% sure they wouldn't get anywhere. This was because the unsuccessful candidate claimed they'd been discriminated against as an out gay man: however, the successful candidate was an out gay man. Perhaps this person is similarly convinced they have a 'get out of jail free' card. Doesn't mean they do.

Court won’t force them to employ him in this role- he’ll be awarded compensation if the court actually thinks there was discrimination

It would be a very unwise choice IMO for your employer to do this. They’ll have nothing but issues with this guy and will be too scared to ever fire him for fear of being sued.

Anyway, an ET can’t order the employer to give him the role. Reinstatement and re-engagement orders are only available in unfair dismissal claims, which this isn’t, because he was never employed!

All they can do for discrimination claims is make a “recommendation” with a view to removing future discrimination, but there’s no legal obligation to actually follow it.

I have seen two discrimination claims on recruitment over the years - both claimants lost. One was similar - race discrimination, but the successful candidate shared the same ethnicity.

Thank you all. I thought it sounded like nonsense but recently heard it from the guy himself.

I was involved in selecting candidates but not the interviews. I think his main gripe is that the vacancy holder 'has been hostile/bullying to him' and he think this may be on the grounds of race. We work in a very ethnically diverse area so I'd imagine if the boss was racist more people would have had problems with him.

I think the bigger issue for the unsuccessful candidate is that now his temp promotion is finished there wasn't a great role for him to go into at his old level so he's got something that is within his profession but he doesn't like.

But surely he wouldn't want to work for the boss he has accused of racism? Maybe he expects the boss to be removed too.