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Guilt by Association

People get terribly bent out of shape when they talk about discrimination. Let’s be clear. Discrimination of itself isn’t wrong or unlawful. It just means being selective. It’s wrong when you take generally irrelevant or inappropriate factors, such as gender, into consideration in making a decision.

Nor is discrimination about treating people the same – a common misconception. It’s about levelling the playing field so that people who have a disadvantage are able to compete equally.

Allegations of discrimination crop up quite a bit in our lives, especially when we are taking someone through a discipline process. Attack is the easiest form of defence. When we put our case forward we get responses such as ‘it’s because I’m young/ old/ black/ white/ Chinese/ Welsh/ pregnant/ disabled/ Martian isn’t it?’’. Heavens to Betsy. I wish people would put as much energy into doing their jobs as accusing us of being discriminatory and then we probably wouldn’t be having the conversation in the first place......

A proper investigation to establish the facts means we can usually rebut such responses by proving what we are saying and showing it has nothing to do with any protected characteristic.

Once in a while we do have to pull a client out of hot water when something has been said in the heat of the moment and is or could be construed as discriminatory. Fortunately, it doesn’t happen very often. Problems can arise at any time, including the recruitment process. Sadly there are those out there who attend many job interviews in order to find and pursue a claim of discrimination. A careless whisper in your advert of recruitment process can get you in a lot of trouble.

Less common are cases of discrimination by association. This is where an individual is treated less favourably because of their association with someone who has a protected characteristic. The best known UK case was Sharon Coleman who successfully pursued her former employer solicitors Attridge Law for their alleged discriminatory remarks in connection with Ms Coleman and her disabled son. The European Court of Justice agreed that employees should not be treated less favourably because of their association with someone with a protected characteristic.

Last week America hotelier André Balazs hit the headlines when he allegedly made some inappropriate remarks to a candidate for a job. Karen Anderson had applied for a role at the hotel on Sunset Beach. During the interview Mr. Balazs had asked Ms. Anderson what her ideal job was. She replied that she would like to run a nursing home to which Mr. Balazs replied, “Do you know how schizophrenic you sound?” Ms. Anderson tried to justify her answer by explaining about her severely ill son who suffers from muscular dystrophy. Mr. Balazs didn’t want to hear it, cutting her off by saying ‘”You will never work for me. If you have a disabled child you will never be able to give me 100%”. Clearly, Mr Balazs is a bit of a charmer......

The comments are completely inappropriate and of course unlawful. Mr. Balazs’ lawyer, backpedalling furiously, now says the decision not to employ Ms. Anderson was based on the facts of the interview and was not based on any discriminatory considerations.

This is not to say that you have to automatically hire the parent of disabled children. What you should not do is refuse to hire them if they are otherwise a good match for the job because of the protected characteristic or their association with a person with a protected characteristic. When going through a recruitment process the details of the role should be based on the facts. Ask yourself what tasks will the person be doing on a daily basis? This will form the job description. In order to be able to perform those tasks, what skills and qualities does that person need? This will form the person specification. Design a selection process that captures and tests the relevant information.

Ask about something that is relevant to the role, using the points in the person specification to form your questions. The idea of the interview is to gather evidence to decipher whether that candidate has the skills for the role. A decision should not be based on a candidate’s personal life. If the candidate mentions something that is not relevant to the role you can simply acknowledge that the comment has been made and move the conversation back to the role.

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