Sex discrimination during interviews

26 July 2016

Sex discrimination during interviews

In one of the first ‘hypothetical male comparator’ cases, a woman from a pool of all female candidates has won her claim for sex discrimination arising from the questions she was asked at her job interview.

The case

Claimant Ms MacDonald was one of five women interviewed for the post of Cultural and General Information Assistant at the Japanese Consulate. No men were interviewed. During the interview Ms MacDonald was asked if she had any children and when she confirmed this, she was asked a number of questions:

  • What she would do if one of her sons was sick?
  • What she would do about her children if she was expected to work at night?
  • Whether she could afford the childcare and nursery costs charged locally?
  • If any family members lived nearby who could help her with the children?

Overall, half the interview was about her childcare arrangements and, although Ms MacDonald was subsequently offered the role, she decided to turn it down and claimed sex discrimination in a Scottish Tribunal.

The outcome

The Tribunal ruled in Ms MacDonald’s favour, noting that she had been asked a large number of questions about her ability to cope with the job as a mother of young children. For this she was awarded £2,000 together with her costs.

It is interesting to note that in this case, despite the fact that all the candidates were women, the claim was for sex discrimination. In cases of sex discrimination, a woman can use a hypothetical male comparator and in this case the tribunal found that even though no men were interviewed for the job, one might have been and the tribunal concluded that “he” would not have been treated in the same way as the woman.

Laura Burnett

 

Laura Burnett, Employment Law Team Manager, says:

 

“This case shows that discrimination claims can be brought even before the employment relationship has commenced. This ruling does not necessarily mean an employer cannot enquire about childcare arrangements.

However, it is a risky route to take as an employer must demonstrate that any questions

  • Are relevant and reasonable (be able to explain why it is necessary to ask such questions)
  • Put to all candidates and/or
  • Demonstrate they would have been put to a man if a man had been interviewed for the role

It is best practice for employers to take each candidate at face value and assume that they will sort out any external arrangements necessary to allow them to attend work.”

If you are concerned about what you are able to ask during an interview process, please contact us.

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