Can a senior member of staff tell a job candidate that their attitude stinks? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills and Reeve, offer legal advice.
The question:
A candidate has recently applied for a post you have advertised and has gone through the interview and testing stage. Just before the candidate leaves the premises to go home, can a senior member of staff, who has had nothing to do with the interview stage, take the candidate into a quiet room and say to the candidate “your attitude stinks”?
The same person told the candidate that it was necessary to provide this feedback, even though not asked for, but it will not affect the application!
Is this allowed?
Raj Mann
Legal advice:
Esther Smith, partner, Thomas Eggar
This situation sounds a little bizarre! However, to answer your question this action is “allowed” unless it amounts to some form of illegal discrimination. It appears that the person who told this candidate that there was an issue with their attitude had had no contact with them and arguably no grounds on which to make such comments.
The individual can, if he believes that the comments were made on the ground of some protected form of discrimination, for example his race, religion, gender, disability etc, can file a questionnaire with the company to try to obtain further information about the situation and why these comments were made and what role if any they played in any subsequent decision-making process on the recruitment.
If the candidate gets the job irrespective of the comments then there does not appear to be much issue with the comments that were made although the individual may want to bring them to the company’s attention.
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 and employment law specialist, Mills and Reeve
This seems like very odd behaviour. Essentially there is no legal impediment to the senior staff member behaving in this way but one has to question the motivation and necessity for such action. It is always useful to give feedback from interviews but this should come from someone who was involved (either an interviewer or someone briefed to give feedback by the interviewer).
Furthermore it is not good feedback simply to say ‘your attitude stinks’. What, after all does that actually mean? This tells the candidate nothing. The danger for the employer is that they may be asked to explain why this person did not get the job (if indeed they don’t) and they will either have a poor reason (‘bad attitude’) or worse, may say something which contradicts the ‘bad attitude’ reference.
There may be an implication that they have picked on ‘attitude’ in this very generalised way because they do not want this otherwise acceptable candidate for another reason (sex, race etc).
Martin can be contacted at: martin.brewer@mills-reeve.com
