The recent successful claim by a Jewish woman, Aurelie Fhima, for indirect discrimination following the refusal of her application for employment has brought discrimination against job applicants into the spotlight.
Ms Fhima was interviewed for a position in the call centre of Travel Jigsaw which operates 24 hours a day, seven days a week. The successful applicant would be required to work shifts on five of the seven days. Ms Fhima explained at interview that she observed the Sabbath and was therefore unable to work Saturdays. Following this, she received a rejection letter stating “We cannot offer you a position at this time. We are still looking for people flexible enough to work Saturdays.”
The Employment Tribunal awarded Ms Fhima £7,500 for injury to feelings, almost £8,000 in loss of earnings and £1,200 in Tribunal fees plus interest.
Indirect discrimination occurs when an employer operates a provision, criterion or practice (“PCP”) which places those with a specific protected characteristic at a particular disadvantage. If the employer can show that the PCP is objectively justified, there will be no discrimination.
In the case of Ms Fhima, Travel Jigsaw was unable to show that the requirement to work Saturdays was objectively justified because the Saturday shifts could have been covered by other members of staff and Ms Fhima could have been required to work on five of the remaining six days.
Employers should remember that the discrimination provisions apply equally to employees, workers and job applicants. Employers should therefore keep accurate records of why job applicants were unsuccessful and ensure that the reason for the rejection is not discriminatory. This applies to all types of discrimination and will be particularly important where a job applicant has disclosed that they may fall within a protected group, for example that they suffer from a disability, that they follow a particular religion or if they are pregnant.
If employers require job applicants to be available for work on specific days, they must ensure that the PCP can be objectively justified and should consider whether other employees could cover the required shift on any day that an employee is unable to work because of their religion or any other protected characteristic. If another employee could cover that particular shift, the employer is unlikely to be able to justify their reliance on that PCP.
In contrast, the Employment Tribunal found that no discrimination had occurred in James v MSC Cruises Ltd where a Seventh-Day Adventist was required to work periodically on Saturdays. The employer was a travel agency and considered it necessary to offer a partial service on a Saturday but understood that Saturday working was unpopular with all employees. It therefore required all employees to work one Saturday every few weeks. The Tribunal considered this requirement was justified as it was satisfied that allowing an exception for Mrs James would have destabilised the Saturday working arrangements and have a profound effect on the business.
The case law demonstrates that each case will turn on its own facts. Larger employers who have access to greater administrative and other resources may find it more difficult to justify any PCP which indirectly discriminates against a particular protected group.
It is vitally important that all of those tasked with recruitment have up–to-date discrimination training to ensure that they are alert to the particular issues which can arise in relation to job applicants.
Indirect discrimination can be difficult to identify and employers would be well advised to review internal policies and procedures regarding working arrangements and remove any provisions which could be discriminatory.
Kristie Willis is a solicitor in the Employment Law Department at BTMK Solicitors LLP. She advises employees and employers upon all aspects of Employment Law and provides Employment Tribunal representation. Kristie specialises in discrimination and unfair dismissal cases.
