This article was written Andrew Moore, Solicitor at law firm Hill Dickinson.

A recent decision in the Birmingham Employment Tribunal has found that the Royal Air Force (RAF) unlawfully discriminated against a female nurse on the grounds of her sex.

Summary of the case:

Ms Williams joined the RAF in 1984, and enjoyed a successful career as a nurse, rising to the position of Group Captain. Her appraisals from 2007-2010 were impressive, and recommended her for promotion.

In July 2011 she applied for promotion, but the post was given to a male doctor. Ms Williams complained to the Employment Tribunal that the decision was based on her sex. She also claimed that denying her access to a training course designed to prepare officers for this type of appointment was indirect sex discrimination. The course was open to doctors, but not to nurses. A significant proportion of doctors were male and a significant proportion of nurses were female.

The tribunal found for Ms Williams. It found that she was not selected for promotion because of her sex, and the criteria for the training course constituted indirect sex discrimination.

They were critical that the RAF had failed to follow its own promotion procedures, for example, not reviewing candidates’ appraisal records. Also, the RAF had failed to take notes of deliberations, and was unable to provide cogent evidence of how it objectively selected the candidates. The tribunal commented on the lack of a scoring matrix, and heavily criticised the decision makers’ lack of knowledge of the Equality Act 2010 Code of Practice regarding avoiding discrimination in recruitment, selection and promotion.

The tribunal also noted how the RAF had conducted the case, in that it had failed to disclose their equal opportunities policy, provide evidence of the selectors training record, had been reluctant to make concessions in evidence and had failed to comply with the orders of the tribunal.

Lessons to be learnt:

The selection for recruitment, promotion and training is not something that should be taken lightly. In my view the major errors made in this case are extremely common, they are as follows:

1. Record how you reached your decision at the time: contemporaneous notes are essential in providing a credible explanation as how decisions to recruit, promote and/or train were reached.
2. Follow your own procedure: if you have a procedure, ensure that it is adhered to, as failure can result in adverse inferences being drawn. It is vital to have a procedure that is compliant but practical. Far too often we see policies and procedures that appear excellent, however, in practical terms are too onerous and are not followed. It is crucial to ensure your procedures are appropriate for your organisation.
3. Training: staff making the decision on who is to be selected for training, promotion or recruitment should have adequate training in equality and diversity, and should be able to evidence that training.
4. Equal opportunities policy: in this case there was an equal opportunities policy but it was not referred to during proceedings. It is vital not only to have such a policy, but to ensure that it is relevant and effectively communicated to all staff.
5. Objective criteria and safeguards: the more subjective the selection is, the greater the risk a tribunal will find that the decision was based on discriminatory grounds. It is also important to involve more than one person in the process to ensure that the effect of any subjective grounds are minimised.
6. Complying with the tribunals orders: failing to comply with tribunal orders can affect a party’s credibility at tribunal. Complying with such orders will become even more important from 29 July 2013 when new rules come into force, which give tribunals increased powers.

This case really hits home the importance of carrying out and documenting decisions in respect of staff, as well as the need to use policies and procedures in practice.