Can a candidate be successful in a discrimination claim just from a job advert? asks Tom Scaife of Baines Wilson LLP.
HMRC started recruiting for 597 caseworker roles in 2020 for which they decided to advertise that driving licenses were required. An existing employee applied for one of the more senior roles but was unable to drive due to fainting episodes. He was rejected for the role. Was it discrimination?
Drummond v HMRC
Mr Drummond has worked for HMRC since October 2002 and continues to do so. Since 2018 he has been under a no-driving order from the DVLA due to a condition where he experiences fainting episodes.
In 2018, Mr Drummond changed roles and started working as a compliance caseworker for the Hidden Economy division. His role involved reporting businesses that may not be declaring their full income to HMRC and sometimes meant that Mr Drummond was required to visit business sites. Mr Drummond informed his employer that he could not drive; however, it was a requirement that two caseworkers attend these visits and so this was not a barrier to Mr Drummond’s role as he was always driven by a colleague. In any event, Mr Drummond received Access to Work funding so that a support worker could drive him to work-related activities.
In 2020, HMRC recruited for 597 caseworkers including those of a higher grade. It also advertised for 10 complex tax and evasion investigators. The senior leadership team decided that they needed more caseworkers who could drive and so added to the job advert that a driving licence was required. The job advert also stated that “If a person with disabilities is put at a substantial disadvantage compared to a non-disabled person, we have a duty to make reasonable changes to our processes.”
Mr Drummond was contacted by his former manager advising him that he should apply for one of the investigator roles. He was advised that the role was a close match to his current role and the same provisions for two caseworkers to attend a site visit applied so he should not be discouraged because he could not drive. Mr Drummond applied and was rejected for the role.
Mr Drummond queried the rejection as he had Access to Work funding. HMRC responded that a driving licence was a requirement and that was clearly stated on the job advert. Mr Drummond reiterated that he had funding that would allow him to be driven by a support worker for the role.
Mr Drummond received a reply from the Regional Assistant Director that there was a requirement for a driving licence and that the HR department had endorsed this requirement. He also said that they did not consider Mr Drummond as “substantially disadvantaged” because he could easily apply for other roles that did not require his Access to Work funding. Mr Drummond replied that he felt his complaint remained unresolved. He was aware that there were other team members in the higher office roles without driving licences and he was upset at the suggestion that he should apply for other roles to overcome the disadvantage that he could not drive. Mr Drummond raised a grievance which was responded to with the same reasons provided by the Regional Assistant Director. Mr Drummond did not appeal as the opportunity to apply for the role had passed.
Mr Drummond brought claims for disability discrimination, indirect discrimination, and a failure to provide reasonable adjustments.
Decision
Mr Drummond was successful in his claims. The Tribunal found that HMRC had not undertaken an assessment to determine exactly how many caseworkers had driving licences even though this information was readily available to them. HMRC had listed a driving licence as desirable criteria but it was not proportionate to reject Mr Drummond’s application based on this criterion and as such it had treated him unfavourably.
It also ruled that Mr Drummond was a victim of indirect discrimination and reasonable adjustments had not been made. Mr Drummond was awarded £11,108.49 for financial losses and £9,071.34 for injury to feelings.
Comment
Employers need to be mindful of discrimination from the beginning of any recruitment process. Where requirements are set out are they likely to exclude someone due to a disability or other protected characteristic? If so, are the requirements a proportionate way of achieving whatever it is you are wanting them to achieve, or is there a more proportionate way of achieving the same thing?
Awareness should continue throughout the process, assessing whether any adjustments need to be made to the recruitment process to assist a disabled applicant.
If you have any questions in relation to recruitment, discrimination, or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
