Listen to your HR manager
Brian Morron, employment partner at Gotelee Solicitors, explains the perils of ignoring HR advice
Employers can get into hot water if their managers choose to ignore sensible HR advice.
In a recent tribunal case an employer which used the word “younger” in a job specification lost a claim for unfair dismissal and age discrimination.
Mr Beck was employed by Canadian Imperial Bank as head of marketing.
He was 42 when he was made redundant after a few problems with his manager who said he was “simply not right”.
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The bank then recruited for the post of head of European derivatives marketing and specified someone with “a younger, entrepreneurial profile”.
The bank’s head of human resources advised against using the offending word, but was over-ruled.
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Mr Beck applied and said he fitted the bill – except that he was not “younger”.
Mr Beck was beaten to the new job by a 38 year old applicant.
When Mr Beck filed a claim of unfair dismissal and age discrimination, the bank said that “younger” meant someone cheaper and less senior. They had told the tribunal that they had wanted to appoint a 50-year-old but he was too expensive – and they also pointed out that 38 is not much younger than 42.
None of these arguments let the company off the hook. If an employer has used a word like “younger” in its recruitment literature, it raises an inference of age discrimination, which the employer must then disprove.
Mr Beck won his claim of unfair dismissal because the redundancy process was found to be a “sham”. He also won the age discrimination claim.
The Employment Appeal Tribunal was not impressed by the bank’s arguments. If an employee can show that, on the face of it, something looks like discrimination, it is then up to the employer to provide a convincing reason why it was not. Effectively, the bank was left having to prove a negative – which it was not able to do.
Simply do not use words in person specifications hat could be interpreted as discriminatory. If an employee or job applicant can show that, on the face of it, something looks like discrimination, the employer then has to prove it was not. The burden of proof is on the employer. The word “younger” looked like discrimination and the bank was unable to prove otherwise. HR staff should be well aware of this, but are your line managers? We can provide training for HR staff and for managers.
For advice or assistance, please contact Brian Morron on 01473 298126 or email email@example.com .