This article was written by Donna Purchase, an employment solicitor and a Partner at QualitySolicitors Redkite.
The recent race discrimination case brought against Virgin Atlantic in Wales highlights the importance for companies to bring themselves up to speed with exactly what constitutes racial discrimination, not just in the workplace but also throughout the recruitment process.
The case was brought against Virgin Atlantic by Max Kpakio, a Liberian refugee now living in Swansea. Mr Kpakio, who has a BA in International Relations from Swansea University, applied for a job at Virgin Atlantic’s call centre but was rejected. He later applied under the more ‘Western’ name Craig Owen, and was subsequently invited for several interviews, hence his accusations of racial discrimination.
The case was thrown out by the employment tribunal after Virgin Atlantic successfully proved that the two applications were actually very different. In a written statement, Judge Claire Sharp said: "The tribunal wishes to be absolutely, clear given the press coverage in the hearing bundle, that the claimant did not merely change the names and ethnicity in the two applications; they were different applications and the false application was clearly designed to meet the respondent’s criteria for the role."
However, the claim in itself had the potential to be reputationally damaging, given the high profile nature of the company, the sensationalist nature of the story and the consequent media interest. To avoid this happening to your company or organisation, it is more important than ever to heed this cautionary tale, know the law and make sure your recruitment processes stand up to complete scrutiny.
The Equality Act 2010 makes it unlawful to discriminate against individuals in respect of a number of protected characteristics, which include age, disability, race, sex, sexual orientation, religion, and pregnancy/maternity. The Act applies to all employers, no matter how big or small and whatever sector.
The protection offered by the law is far reaching. The Act makes it unlawful for employers to refuse to offer employment to job seekers for reasons related to their race.
It is also discrimination if an employer treats an employee less favourably because they perceive them to have a protected characteristic, even if they are mistaken. For instance, if the employer refuses employment because they wrongly perceive that an African-sounding name belongs to an African national.
In addition, it is unlawful to treat an employee less favourably because of their association with another person who has a protected characteristic. For example, it is discrimination if an employer refuses to offer promotion to someone because they have a disabled child.
The burden of proof in cases for discrimination is on the employer. It is therefore the job of the employer to try and prove that they did not discriminate in the manner alleged.
For example, in fighting the claim brought against it, Virgin Atlantic had to justify the rejection of Mr Kpakio’s first CV, demonstrating that the reason for its rejection was not related to Mr Kpakio’s race or perceived race and that there was a non-discriminatory reason for the difference in treatment between the two CVs.
In these cases, it is also useful for them to show that a company has an equal opportunities policy in place in relation to recruitment and selection and that they comply with these policies in practice.
The Employment Tribunal statistics for 2011/2012 show that the number of discrimination claims has decreased overall. However, claims in some areas of discrimination are rising. For example, the number of age discrimination claims increased by 32 percent last year.
Race discrimination claims have also been on the rise. The Department of Work and Pensions commissioned an investigation in 2009 into whether there was racial discrimination in recruitment – ‘A test for racial discrimination in recruitment practice in British cities’. As part of this research, 2,961 applications were sent to 987 advertised job vacancies. Names on the applications were randomly assigned to convey different ethnicities. The investigation found that 10.7 percent of the 987 applications with a ‘white name’ received a positive response, compared to only 6.2 percent of the 1,974 applications with an ‘ethnic minority name’.
The increase in the qualifying period for unfair dismissal is further expected to increase the number of discrimination claims. Employees who started work on or after 6 April 2012 now need two years’ continuous employment instead of one before they are able to bring a claim for unfair dismissal. In contrast, there is no requirement for any service before issuing a discrimination claim. Hence, there is a concern that disgruntled employees who would bring a claim of unfair dismissal but can’t because they’ve served less than two years, may try to shoehorn their claims within discrimination law so that they can bring a claim in the Employment Tribunal. Certainly, the majority of Tribunal claims that we handle now have some form of discrimination claim. This is only likely to increase in our view.
There is a concern that serial litigants are encouraged to issue claims in these circumstances. The Equality Act did introduce a deterrent to put off opportunist claimants. Under the new laws, a person cannot now succeed in a claim of discrimination during a recruitment process if they had no intention of applying for or taking the job.
However, there is also a serious element that should not be ignored by employers. Research has been commissioned by Race Council Cymru to identify the extent to which racism and discrimination are issues that affect the many and varied ethnic minority communities living across Wales, given that the ethnic minority population of Wales is small.
The research found that people from minority ethnic backgrounds in Wales are still experiencing racism in employment, health, education and housing services. The research showed that racism is a significant issue affecting the lives of people from ethnic minority backgrounds living in Wales.
With this in mind, employers should ensure that they are vigilant. Not only will employers need to be mindful of possible claims from job applicants, but they will need to ensure that they apply equal treatment in all other aspects of employment.
Mr Kpakio’s case should act as a warning to all employers, large and small, to ensure that they have a written equal opportunities policy in place covering the recruitment and selection process. It also illustrates the importance of keeping detailed notes of the application process and implementing objective selection criteria that all successful applicants should be required to meet. If an employer is able to show that they have followed their recruitment policy and have applied non discriminatory criteria to assess candidates for selection, they will have a much better chance of successfully defending any claim.
If in any doubt, now may be the time to implement or review your recruitment policies and procedures.
