Claimant successful in sex discrimination claim when comments, during an interview process, were made about her smile and thinking about the panel being naked to calm nerves.

The claimant is employed by the respondent as Health Development Specialist for Sexual Health and Disability.  The claimant held the position of interim Head of Health and Improvement from February 2022 until it was advertised for a permanent role in January 2024.

The claimant went through the process and attended a final interview.  When the claimant entered the room – a member of the panel, Mr Powell, remarked on the claimant’s appearance referring to the claimant’s big smile.  He also stated that if the claimant was nervous she should imagine the panel are naked.  These comments were not made to any other candidate, male or female.  The claimant was unsuccessful following the final interview. The claimant brought a claim for sex discrimination and claimed injury to feelings.  There was no claim brought for pecuniary loss for failing of opportunity.

The respondent argued that the comments were ill-judged attempts to reassure the claimant rather than being sexist.  The respondent also argued that even if the Tribunal found that the comments would not be made to a male applicant it should not directly follow that they were sexist.

The claimant argued that she suffered detriment stating that she performed adversely as she was affected by the comments.  She also asserted that she suffered ill-health and having to take medication for anxiety and depression as a result.

The Tribunal found that the comments were inextricably linked to the claimant’s protected characteristic of sex. The Tribunal used a hypothetical comparator – that being a male applicant who Mr Powell knew personally in a similar way to the claimant.  The Tribunal weighed up the evidence of Mr Powell and found that he would not have made similar comments to a male candidate at final interview. As a result, it was found that the claimant was treated less favourably as a result of her sex.

In terms of damages the Tribunal found that it was a one-off occurrence but it did lead to mental distress, humiliation and anxiety.  As a result, taking into account the bands it was found that it would be lower-middle band and an award of £15,000 was made. 

When it comes to a recruitment exercise, even where there may be a personal relationship, it is important to have a structure and formalism which applies to all applicants equally.  To move off such a structure can open up a situation to comments being made to some applicants and not to others.  In this situation, it was a comment made which the Tribunal found was only made to a female applicant and would not have been made to a male comparator.  Therefore, having such formalism and training reflecting that will be useful in ensuring protection for the employer.

NI Tribunal decisions are available on the OITFET website.