RECRUITMENT DISCRIMINATION – THE DUTY TO CONSIDER THE FACTS

The recent case of Sivanandan v Independent Police Complaints Commission UKEAT/0436/14/LA has emphasised the need to ensure that all material facts are taken into account in any employment issue, particularly before a claim is dismissed.

In this case, Ms Sivanandan, a self-employed Barrister, had applied for a job as an Investigator with the Directorate of Investigations, who investigate allegations of “the most serious complaints of misconduct against the police”.

Amongst other criteria, the person specification for the job (as advertised on the 2^nd of January) required “recent experience (i.e. within past 12 months)”. However, on the 10th of January, the Directorate determined that the role of investigator actually required at least 5 years recent investigative experience; but this was not conveyed to Ms Sivanandan, or any other applicants.

Ms Sivanandan’s application was rejected at the first stage of the process, a “paper sift”. Amongst the reasons given by the decision maker was that she did “not have substantive investigatory experience within the last 5 years”.

As “an Asian woman of Sri Lankan origin” Ms Sivanandan alleged unlawful direct and indirect race and sex discrimination in relation to the recruitment, selection and appointment, particularly on the basis of the statistics relating to the jobs offered because, of those 35 offers:

• 32 (91.5%) were to those who stated they were white
• 14 (40%) were to females

The Directorate recruiters argued that their decision was reasonable because, of the 1192 candidates:

• 1037(87%) were white
• 411 (34.5%) were female

Therefore, they asked the Tribunal to strike out Ms Sivanandan’s claims.

The Employment Judge, without having first heard any evidence (although the Judge did see a bundle of documents):

• Struck out Ms Sivanandan’s indirect discrimination claims
• Ordered that her direct discrimination claims should be subject to a deposit order (i.e. that Ms Sivanandan pay a deposit of money to enable her to continue with the proceedings)

Ms Sivanandan appealed to the Employment Appeal Tribunal (EAT) on the basis that:

• The Tribunal should not have taken this action where there were likely to be factual disputes without the Tribunal having heard evidence
• The Judge appeared to show a bias towards the directorate

The EAT allowed her appeal with regard to striking out her indirect discrimination claims on the basis that, although Rule 37(1)(a) of the Tribunal Rules 2013 allows a case to be struck out, the “threshold is high”.

The EAT also referred to a previous case (Balls v Downham Market High School and College [2011] IRLR 217), where Lady Smith emphasised that the Tribunal is required to:

• “First consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success”
• Bear in mind that the test is “not whether a claimant’s claim is likely to fail, nor is it a matter of asking whether it is possible that the claim will fail. It is a high test and there must be no reasonable prospects”

Practice Managers should now:

• Review recruitment and selection process to ensure that the person specification/ criteria for a role is finalised before a role is advertised (to avoid this type of situation)
• Follow the EAT’s advice to Tribunals and carefully consider all available information before reaching a decision in any employment issue

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