The legal context
Both direct and indirect discrimination are unlawful under the Equality Act, 2010. Most organisations understand direct discrimination and, for example will not place an advertisement stating that a man is required, or that an older person is wanted. However, organisations are not always as aware that they can discriminate without intending to do so as this scenario shows.
One of the product categories dealt with in the warehouse is garden furniture. Most of this comes in a flat pack format, and some of it can be heavy to move. Employees working in this section have to be able to manage heavy items, but all heavy lifting is carried out using fork lift trucks.
A vacancy arose in this section and Bob Jones, the manager, placed the following advertisement in the local newspaper:
This large and busy warehouse has a vacancy for a storeman. The job is based in the garden furniture section and involves picking items as they are ordered, and delivering them to the packing section.
The successful applicant will have experience of working in a busy warehouse. We are looking for a mature and experienced person, who can work effectively within a team. You must be strong and able to lift heavy items.
To apply please send your CV to Bob Jones, Garden Furniture Section, The Stores, Leeds, LS1 111
Bob received applications from Nancy, Pete and Kevin:
- 20 years old.
- Nancy had worked in a warehouse for 18 months - firstly as an administration trainee, and then moving into picking.
- The warehouse where she worked dealt with books. All items over a certain weight were lifted by fork lift truck and she was qualified to drive the truck.
- She had never been required to lift heavy loads.
- 37 years old.
- Pete had 20 years' experience working in a warehouse.
- His warehouse was in a manufacturing organisation, and he was used to moving heavy metal items of awkward shapes and sizes.
- Although fork lift trucks were used to move some items (and he was qualified to drive one), he was used to lifting heavy loads.
- One of his hobbies was weight lifting.
- 19 years old.
- Kevin had worked in a warehouse for 12 months.
- The warehouse where he worked had a large mix of items. He was not qualified to drive a fork lift truck, but he did use one occasionally under the supervision of a colleague.
- He was an amateur footballer.
As all three applicants had relevant experience Bob decided to invite them all for interview. He also decided that he would include a work-based test as part of the interview. He had heard about this approach, and thought it sounded a good idea. He was not keen to rely on an interview alone.
Bob decided to hold the work-based test in a quiet part of the warehouse. It would involve reading a list of goods ordered by a customer, identifying the correct goods and loading them on to a truck to be taken to the packing department. He decided not to make a fork lift truck available for the test, because he thought it best to assess the applicants on what they could do without assistance.
Nancy was the first to come for an interview. Bob started by talking to her about her current role. She came across well, although clearly nervous. Bob noticed that she was small and slight - about 5’ 2” he estimated, and no more than 8 stone.
Although she seemed pleasant and Bob thought she would fit well with the team, he decided not to allow her to take the work-based test. He was sure she would fail, because she would not be able to lift the heavier items that he had included as part of the test. He did not want to humiliate her, so he thanked her for coming and said that he would contact her shortly about the position.
When Nancy left he immediately put a cross against her name. He decided that she was not strong enough for the role, and that she had insufficient experience.
Pete was the next to come for an interview. Bob got on well with Pete. They were of a similar age, and he thought that Pete's experience was just what he needed. He let Pete attempt the work-based test and Pete did well. He was particularly impressed that Pete did not need to use the fork lift truck, and was able to move all the items using his own strength. When Pete left, Bob put a tick next to his name.
The last to attend for interview was Kevin. Bob was not impressed with him during the interview. He had all the experience that Bob needed, but he seemed very young. Kevin did well in the work-based test and showed that he was able to lift all the items without the fork lift truck. When Kevin left, Bob put a question mark by his name.
Overall, there was one clear winner in this interview process as far as Bob was concerned. Pete had the relevant experience and was able to lift heavy items. Bob also felt that he would get on well with Pete and he appointed him to the job. He wrote to Nancy and Kevin telling them that they had been unsuccessful.
After the interviews
A few days later Bob got a letter from Nancy. In this letter she informed him that she considered the whole selection process to be discriminatory. She had become aware that there was a work-based test that she had not been allowed to do and she wanted to know why. Having heard about the test she was sure that she had not been allowed to do it because she did not look strong enough and she thought that was unfair.
Bob also received a letter from Kevin saying that he thought that whole selection process had been discriminatory. He suggested that Bob had wanted an older person for the job. In particular, Kevin referred to interview questions that Bob had asked about his attitude to work and how many days he had lost because of a hangover from the night before.
Advice from HR
Bob went to see the HR Manager, Simon, for some advice. He took his interview notes and a copy of the advertisement. Simon read the documents, and then asked Bob what person he had seen as being ideal for the job. Bob admitted he wanted an older man. He said he had had bad experiences of employing younger people in the past (they had all been unreliable) and that he did not want a woman because ‘they are not strong enough to do the job'. He also told Simon that he was aware that he could not directly choose someone on the basis of their gender or age, so he had been careful to interview all three applicants fairly.
Simon looked at the advertisement with Bob and suggested that there was an underlying message in the words that implied that Bob wanted to employ an older man. He pointed to the fact that Bob had advertised for a 'storeman' - a job title that the organisation no longer used, partly because of the gender bias within the word.
He also pointed out that Bob had asked for someone who was 'mature and experienced' which suggested an older person. Bob admitted that someone who had worked in a warehouse for three months would have sufficient experience to do the job. Simon also drew Bob’s attention to the fact that 'strong and able to lift heavy items' suggested that Bob wanted to employ a man. Bob acknowledged that there were always fork lift trucks available and, on health and safety grounds, employees were supposed to use the trucks for all items over a certain weight, so there really was no need to be able to lift heavy weights.
Simon suggested that the general tone of the advertisement was discriminatory. He suggested that someone reading the advertisement could 'read between the lines' and be clear about the type of person that Bob had in mind for the job.
Simon then turned to the work-based test. He agreed that this was a good idea, but stressed the importance of ensuring tests were fair to all applicants and questioned why a fork lift truck had not been made available. Bob accepted that this approach had potentially eliminated those who were less strong, and was an artificial means of elimination because lifting such heavy loads without using a fork lift would not be part of the job.
Finally, Simon looked at the notes Bob had made of the interviews. He asked Bob why Nancy had not been allowed to take the work-based test. Bob admitted that this was because Nancy had not looked very strong. Simon suggested that Bob had worked on the basis of a stereotypical image of a woman and had not allowed Nancy to demonstrate what she could do.
Simon then looked at the notes in relation to Pete and Kevin. He could see that Bob had determined that they both had all the attributes that were required for the job. So it was not clear why Bob had chosen Pete. Bob admitted that it was because Pete was older and 'therefore he would be more reliable'. Again, it seemed that Bob had rejected an applicant on the basis of a stereotypical image, this time of a young person.
Simon was concerned that Bob had discriminated against both Nancy and Kevin who it appeared had both met the requirements for the role and that both could have a case to bring at Employment Tribunal. He decided to write to them telling them that there were additional vacancies in the warehouse, and asking if they would like to be considered for those roles. In addition, he suggested that Bob attend the next recruitment and selection training course being run in the organisation to learn more about how to avoid potential discrimination and advised him to consult with him in relation to future recruitment processes, particularly with regards to determining requirements for the role, drafting advertisements, and the development of selection tests. Simon also offered support with shortlisting and interviews.