A candidate from a ‘minority group’ didn’t pass an interview process and has now claimed the interview was unfair due to questions on diversity that made him feel uncomfortable. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise whether there is a strong claim for discrimination.
The question:
A client has asked for some advice regarding a candidate who they interviewed – and has now complained about the interview, which was structured, and was a panel interview. One of the question topics covered diversity. Whilst all of the five candidates were asked identical questions, this candidate had also written a strong supporting comment on their application form (on the diversity section) and mentioned that they were from a ‘minority group’.
This comment was picked up in the interview and the diversity question was asked with this comment as an introduction. The candidate gave sound responses but was ‘vague’. This candidate did not pass the interview and the reason given by our client directly to the candidate was that “they did not display full awareness of diversity and positive discrimination”. The candidate took exception to this and declared that they were gay and felt that the questioning process unfairly pushed them into a corner- either remaining vague or declaring their sexuality which they believe was unfair. The candidate has now complained in writing to this effect. So, can questioning someone on diversity be unfair if that questioning makes them feel uncomfortable in the process?
Legal advice:
Esther Smith, partner, Thomas Eggar
Questioning a candidate on diversity in an interview is not in itself unfair or discriminatory. The question here is whether the candidate has been subject to some form of discrimination on the grounds of his sexual orientation, whether that be direct discrimination, indirect discrimination, harassment or victimisation. The fact that all other candidates were asked the same question is helpful evidence that the individual was not treated less favourably in any way, but the fact that the question was posed to him on the back of something he stated in his application form is possibly an argument to show that he was somehow treated differently. However, the fact that he had put the comment on his application form, upon which he should have assumed his interview would be based, is again helpful for the company.
From what you say it does not sound as if this chap has a strong claim of discrimination in the circumstances, although if this goes to tribunal it will all come down to evidence, as the lack of demonstration of awareness of diversity issues could be levied at anyone irrespective of their sexuality.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner, Mills & Reeve
Questioning someone on diversity cannot in and of itself be unfair (I confess to being a bit alarmed by your reference to ‘positive discrimination’ because positive discrimination is still discrimination and unlawful – that may change next year by the way).
This individual can only validly complain about his treatment if he can show either direct or indirect discrimination presumably on the ground of sexual orientation. In this case, he would presumably have to show that he didn’t get the job because he is gay, that the panel took the decision for that discriminatory reason.
This would be a claim for direct discrimination and that will be difficult because it seems apparent from your question that the panel didn’t know the applicant was gay when it decided not to appoint him so it’s difficult to see how him being gay could have informed their decision on the application.
Provided each candidate was treated in the same way I suspect there’s little of substance to worry about here.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.
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