Case Law Round-up

We have seen a couple of cases recently where a job applicant has brought a tribunal claim after their offer of employment has been withdrawn. Let’s take a closer look at what happened and what the tribunal said.

Asking a job applicant the age of their children was direct sex discrimination

The claimant applied for a position with the respondent and after attending two interviews they were offered the role. The contract of employment was signed by both parties. Around a week before the claimant was due to start, an online meeting took place with the claimant and the respondent’s General Manager. At the start of the meeting the Senior HR Manager jumped on the call to introduce the parties and explained that the claimant would need to leave on time to attend to their children.

During the call, the General Manager asked the claimant about their work experience, the type of projects that they have worked on and the clients they have worked with previously. Towards the end of the call, the claimant was asked, “How old are your children”. The claimant responded by explaining that their eldest was four years old and the youngest was nearly one.

Days after the meeting, the claimant was told that the job offer was withdrawn. It was the respondent’s position that its Head Office had introduced a freeze on headcount which meant that it could not proceed with the employment of the claimant.

The claimant brought a claim for direct sex discrimination. They argued that they had been treated less favourably because of their sex as the signed contract of employment was withdrawn and because they were asked the age of their children during the meeting.

The ET concluded that the claimant’s sex was the reason the contract was withdrawn and that this and asking the age of the claimant’s children were acts of sex discrimination. The ET held that it was more likely than not that the claimant was asked this question because they were a woman and that the same question would not have been asked, out of the blue, of a man. The claimant was awarded £91,597.82.

(Lee v R&F Properties QS (UK) Co Ltd)

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Withdrawal of job offer because of Facebook comments was direct discrimination

The claimant was offered a job as a social worker subject to written references and a DBS check. The two references were unsatisfactory and lacking in detail. After the references were received, a manager for the respondent carried out a Google search of the claimant. The manager found that there were two articles, one published by the BBC and the other by The Guardian, which were about views the claimant had expressed previously on Facebook about the LGBTQI+ community and about same-sex marriage.

After reading these news articles, the respondent withdrew the conditional offer without any discussion with the claimant. The respondent explained to the claimant that they were “struggling to reconcile how the claimant’s views would align with the requirements and desired outcomes of the role”.    

The claimant brought several claims, one of which was a claim of direct discrimination because of their religion or belief. This claim was successful.

The Employment Tribunal (ET) found that the real reason the claimant was treated in this way was because of their expression of views rooted in their religious belief which impacted on the respondent’s concerns for the safeguarding of their service users. The ET held the claimant should have been given the opportunity to provide assurances and satisfy the respondent of their suitability for the role. That would have been a less intrusive way of proceeding according to the ET.

(Ngole v Touchstone Leeds)