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Employment Law Problem Question - Discrimination
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Employment Law Problem Question on Discrimination
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Grade: 65QUESTION
St. Agatha’s is a private boarding school proud of its long tradition of only
admitting girls. The school board wishes to employ a professional fundraiser
for the school. The advert for the post that is placed into the local newspaper
states that a) ‘only past pupils need apply’ to a maintain a link to the traditions
of the school, and b) that ‘preference may be given to candidates that have
been resident for forty or more years in the locality, to ensure familiarity with
the local people and with the long tradition of the school’.
Three candidates apply. Adam, a white man, is immediately rejected, on the
grounds that he did not attend the school. Geraldine, a forty-year old past
pupil and a well-known local campaigner for equal rights for homosexual
couples, is also rejected, on the grounds that her campaign work does not suit
the image that the school is attempting to project. Breonna, a thirty-year old
past pupil who is black is called to interview. Breonna attends the interview
with her hair worn naturally (that is, curly and not straightened). One of the
three interviewees asks Breonna if she always wears her hair in that way as
they have a strict policy against ‘unprofessional’ hairstyles. Breonna responds
that yes, this is her preferred hairstyle. Breonna is not offered the job and is
also not given a reason for the rejection. Two weeks later, the post is re-
advertised.
Advise all three applicants on their potential claims for discrimination.
Answers must not exceed 1,500 words.
ANSWER
All claimants will be advised on their potential claims for discrimination against St Agatha’s under the
Equality Act 2010 (hereinafter EqA). Although the claimants are not employees, protection extends
to recruitment arrangements (S39(1)(a)).
, Adam
Adam could bring a claim for sex discrimination (S11 EqA), if he can prove the advertisement’s
requirement that “only past pupils can apply” has the effect of excluding men, who historically
haven’t been admitted to the school. Whilst indirect discrimination may apply considering the
criterion short-listing candidates deterring men from applying, it’s so closely linked to the protected
characteristic that application amounts to direct discrimination (James v Eastleigh [1990]).
A. Direct Discrimination
To establish direct discrimination (S13 EqA), Adam must have firstly been ‘treated less favourably’
than others. The EHRC Statutory Code of Practice on Employment (hereinafter ‘Code’) defines this as
including “being deprived of a choice or excluded from an opportunity” (S3.4) which was upheld for
sex discrimination in Birmingham City Council [1989]. As the advert stated, “only past pupils need
apply”, with St Agatha’s being an all-girls private school, it deprives men of an employment
opportunity. If Adam can prove sex isn’t an actual job requirement, St Agatha’s would be liable for
excluding talented workers from employment based on gender.
Secondly, the treatment must be ‘because of a protected characteristic’ which can be proven by
using hypothetically-constructed comparator with equal material circumstances (S23 EqA) but
lacking the protected characteristic (Shamoon [2003]). Nonetheless, ‘but for’ Adam’s sex, he would
have been treated equivalently because a woman with identical material circumstances didn’t
attend the school, meaning gender wasn’t the fundamental ‘reason why the claimant was treated
the way he was’ (Shamoon [2003]).
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