HR Expert: Avoiding discrimination during recruitment

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My client has been advertising a new role within their business, a small café on the Cornish coast. It sounded like it was going well, until yesterday, when they received notification that an employment tribunal claim was being made against them for sex discrimination. This is worrying enough, but they don’t even know the person who has made the claim – it would seem they live in Aberdeen! The claim is based on the wording of the advert, which I have provided below. Should they be concerned?

“Takeaway female driver needed to join the Mary’s café on the beautiful Cornish coast. The selected candidate also needs to work the weekend full time but he/she will have 2 days off during the week”.

Unfortunately, your client is learning the hard way how important it is to be careful, when recruiting for a post, with the language that is used and the requirements that are set for the role. In particular, your client’s specification that they are looking for female staff is likely the issues here.

What could be the problem with this?

Whilst there are some instances where sex can be a genuine occupational requirement under the Equality Act 2010, it’s hard to see how this would apply for a takeaway driver. After all, the contact with clients would be minimal at best.

This situation is similar to the recently reported employment tribunal case of Ramos v Lady Coco Ltd t/a Shamela’s Fresh Hot and Cold Food [2023], where a Glasgow based employer was also on the hunt for female employees. On seeing their similarly worded advert, a London based male who had worked as an interpreter and legal advisor, took offence. Deciding this was sex discrimination, he brought a claim. He did not, however, contact them to discuss whether they had intended to exclude men, despite his presumably excellent language skills and knowledge of the law. Neither did he investigate the practicalities of relocating to Scotland from London, which would have been required had he been genuinely interested in taking on this role.

Whilst the wording of the advert was in fact discriminatory, Ramos lost the case. This was because the employment tribunal doubted his motivations in bringing the claim and did not believe he actually wanted the role or to relocate. The tribunal therefore found he did not have a genuine intention to apply and take on the role, and so he was not treated less favourably than a female comparator. In fact, an order was made for Ramos to pay the employer £697 for acting vexatiously and unreasonably in bringing a claim with no reasonable prospects of success.

Based on the above, if your client’s applicant is in a similar position to Ramos, they may not succeed in this claim against them. Nevertheless, you should encourage your client to use this as a lesson and amend this advert immediately, as well as being more careful with how they word things in the future.

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