In a recent Tribunal case the Lord Chancellor has come under fire for appointing his
Special Adviser from among his personal contacts rather than by open advertisement and
competition. As a result, established recruitment practices, such as head-hunting, are
being closely scrutinised and it may be questioned whether they are now in contravention
of the sex discrimination legislation.
Following the election of the Labour Government in 1997 the Lord Chancellor sought to
appoint a Special Adviser. He appointed Garry Hart, a Partner at a leading firm of
solicitors and a personal friend of the Lord Chancellor. It was clear from correspondence
that that personal knowledge had been a key factor in his appointment. The post was not
advertised. Following Mr. Hart’s appointment Jane Coker, a Partner in an immigration
practice, complained to an Employment Tribunal that she had been discriminated against on
the grounds of her sex. Ms Coker claimed that by failing to advertise the vacancy which
existed and by recruiting from among his personal contacts instead, the Lord Chancellor
had discriminated against her in the arrangements made for the appointment of Special
Adviser because his personal acquaintances were predominantly male.
The Tribunal held that the Ms Coker had been indirectly discriminated against. This was
because the Lord Chancellor had in effect applied a requirement or condition that
successful candidates had to be personally known to him. On the basis that the Lord
Chancellor’s professional friends were predominantly male, this had a
disproportionately adverse impact on women. That requirement or condition could not be
said to be justified, the Tribunal held, in that being friends with the Lord Chancellor
could not be said to be a necessary pre-requisite of being able to do the Special Advisor
job. Perhaps the very sensitive nature of the role makes this a questionable finding in
this particular case but it is clear that for "lesser" jobs, such justification
could be very hard to establish.
The Tribunal held that as a result of the discrimination Ms Coker had suffered a
detriment. Had she been given the opportunity to apply for the post of Special Adviser,
her application would have received consideration on its merits. Being deprived of this
opportunity was a detriment irrespective of whether or not she would ultimately have been
appointed.
The Tribunal’s decision is perhaps surprising. It rejected the argument that not only
women were adversely affected by this requirement - the overwhelming majority of men were
also excluded because the procedure which the Lord Chancellor adopted excluded not only
all women but also all men who were not of his personal acquaintance. On this basis the
requirement was applied equally regardless of gender and there could not be said to be a
disproportionate impact on women. The fact that the circle of friends which the Lord
Chancellor has chosen over time is predominantly male is not within the remit of the sex
discrimination legislation, only the procedure adopted by which the appointment was made.
Despite the questionable legal nature of the Tribunal’s decision, its potential
ramifications are clear. Can an employer now recruit for any post without advertising? Are
head-hunters to become a dying breed? If the logic of the Tribunal is followed then any
person could challenge an appointment to a post which had not been advertised despite the
fact that the individual had not applied for it and was by no means necessarily more
suited to it than the person actually appointed. Internal recruitment would also become a
questionable practice. Clearly if this decision stands employers will need to ensure that
their recruitment processes, whatever they may be, comply with the SDA. Long-established
networking practices and "old school tie" appointments may become a thing of the
past. If the Employment Appeal Tribunal supports the comments of the Tribunal in this case
that ‘word-of-mouth recruitment tends to perpetuate discriminatory situations and is
therefore undesirable’ it can be taken as an indication of the way in which these
practices may be viewed in the future. Instead the emphasis would have to be on a public
appointment process, bound to be longer, more litigious and much more expensive. Having a
personal contact who fits the bill, wants and is available for the job may become the
start of a recruitment nightmare rather than a way round one.
STOP PRESS
While the Government has stated its intention to issue a non statutory code of practice on
sexual orientation it may come under further pressure following a recent decision from the
European Court of Human Rights. Four applicants have successfully claimed that the
Government’s ban on gays and lesbians in the armed forces violates Article 8 of the
European Convention on Human Rights which provides that everyone has the right to respect
for private and family life and correspondence. The implications of the cases are more far
reaching than may initially appear. Any public sector body in the UK is now at risk of
litigation if it discriminates on the ground of an employee’s sexual orientation. In
turn the Government will be placed under further pressure to update existing
discrimination laws to include protection from discrimination and victimisation on grounds
of sexual preference.
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