Indirect Discrimination in Recruitment

A Jewish woman recently launched a successful claim for being indirectly discriminated against after her application for employment was refused.

Travel Jigsaw was the employer in the firing line after Ms Fhima was interviewed for a vacancy in their 24/7 call centre. The position required applicants to work five of the seven days. At the interview stage Ms Fhima notified the employer that she observed the Sabbath and would be unable to work Saturdays because of this. In the coming days, she received a letter which read “We cannot offer you a position at this time. We are still looking for people flexible enough to work Saturdays.”

Ms Fhima was awarded over £16,000 by the Employment Tribunal due to injury to her feelings, her loss of earnings and Tribunal fees.

Employers which have provisions or practices in place which puts those with specific protected characteristics at a disadvantage are being indirectly discriminative. Unless they can demonstrate that the provisions or practices are justified.

In this case, Saturday shifts could have been covered by Ms Fhima’s colleagues and she could have worked five of the remaining six days. Therefore Travel Jigsaw was unable to demonstrate that their requirement to work Saturday shifts was objectively justified.

Discrimination legislations apply equally to employees, workers and job applicants and it important that employers remember this. Employers must make sure that their reason for rejecting applicants is not discriminatory and accurate records of all applicants should be kept. This can be extremely important when an applicant has mentioned that they suffer from a disability, that they follow a particular religion or if they are pregnant

In a separate case, James v MSC Cruises Ltd however, the Employment Tribunal found that no indirect discrimination had occurred. The travel agency considered it necessary to offer a partial service on Saturdays but recognised that Saturday working was not favoured among their employees. Therefore they only requested employees to work one Saturday every few weeks. This request was deemed to be justifiable by the Tribunal after Mrs James was dismissed due to disrupting the Saturday working arrangements and having a profound effect on the business.

Each case will rely on its own circumstances and facts, however larger employers which have a greater amount of resources may find it difficult to justify and procedures which may be indirectly discriminating against a protected group.

Here is a photo recently seen by a CWJ employee advertising a vacancy for an International clothing shop:

You have to ask yourself what the purpose of a photograph would be in demonstrating how an applicant’s skills match the role.