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Loose Words Cause Claims

There are nine protected characteristics. We all have them; some of us have more than others. The nine are: age, race, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion and belief, sex, and sexual orientation. Treating someone less favourably because of a protected characteristic is unlawful in the UK. This could be selecting a particular person for a job because he is younger than the other candidate, not giving an employee a pay rise because she is pregnant or selecting someone for redundancy because of his religion. The examples go on.

An employee does not need any service qualifications to bring a claim of discrimination. In fact, you could be taken to tribunal by someone you have never even met as an individual can bring a discrimination claim at the recruitment stage. This might arise if you are careless with the wording of your adverts - for example requiring applicants to be “dynamic” which according to the tribunals might suggest you are looking for young people. Yes, I know that being dynamic isn’t age-related. There are plenty of dynamic 50 and 60 year olds and deeply un-dynamic 20 and 30 years olds, but it’s a question of judicial perception.

Immuno Biotech is behind the ‘wonder drug’ for cancer that was banned earlier this year over health concerns. Recently Mr David Noakes, the CEO of the UK based pharmaceutical company, was successfully sued by his Personal Assistant, Ms. Lucia Pagliarone. He was found guilty of sex discrimination.

Ms. Pagliarone found her old application on his desk amongst a pile of other papers. The notes on her application read as follows; “Red lipstick, heels, good; tattoos, do not approve; wearing a dress excellent.” She said that her former employer had said after interviews with other applicants: “We can't hire her as she is ugly and overweight and I only employ beautiful women.” On another occasion he said “How are we supposed to hire her? Did you see what she was wearing and the size of her? We can't have her on the frontline representing GcMaf [the cancer drug] looking like that.”

These discourteous and gender-specific comments contributed to an intimidating and humiliating working environment for Ms Pagliarone due to her female gender. Even though Mr Noakes’ comments related to other female employees or applicants, a claim for sex discrimination does not have to relate to comments made solely to the individual making the claim. Mr. Noakes was found guilty of discrimination and Ms. Pagliarone was awarded £10,500. The tribunal described Mr. Noakes language as “intimidating” and it concluded he had created “hostile and humiliating working environment.”

The decision of whether to employee someone or not should be based on his ability to do the job. It should not matter whether the individual is male or female, young or old, white or even green with purple spots. If he (or she) can demonstrate that he matches the essential criteria and can do the job then he is a good candidate.

The recruitment process should test whether an employee has the key skills to do the job. Competency based interview questions should be based around the person specification obtaining examples of a time the candidate has demonstrated that particular skill. We recommend doing some testing as part of any recruitment process. The testing should be relevant to the role, for example at Russell HR Consulting we ask trainee candidates to research a topic and present it to us as this is a key skill for the role, especially in the first year. This would not however be suitable testing for someone applying for the role of yard operative in a builder’s merchant.

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