Background:

The claimant is an African Arab and having been trained in Northern Ireland he worked for the health service and had been a consultant in obstetrics and gynaecology since 2006. The claimant unsuccessfully applied for locum posts with the respondent on two occasions in 2009.   The claimant stated that in 2009 he was told that the respondent tended not to employ overseas doctors for permanent consultant jobs and that overseas doctors were there to fill gaps.

The claimant unsuccessfully applied on six occasions for permanent roles since then.  In 2020 a new role was created at the South West Acute Hospital. It was seeking a consultant obstetrician and gynaecologist and was to coordinate the training of junior doctors, a lot of whom had been recruited through an international project in 2015. The claimant applied for this role.  The panel was established in accordance with the working guidance (which did not require a racial balance and did not prohibit husband and wife sitting on the panel together – as it did in this situation). In fact, the claimant had attended their wedding having helped train them when they were junior doctors. The panel members had also completed their Equality and Diversity training prior to the process. However, for two panel members it was more than three years old at the time of recruitment. The claimant was deemed not-appointable as the score did not meet the threshold.  The only other applicant was appointable and was offered the role.

The claimant stated that he did not get the role due to bias and institutional racism. He also stated that his qualification in Colposcopy was not taken into account; this was responded to stating that the accusation of discrimination was ‘ridiculous’ and the requirement for Colposcopy was only desirable.

Outcome:

The claimant said that he had been subject to unlawful race discrimination as a result of not being offered the role.  The comparator was the individual who did receive the job offer. The Tribunal stated that the claimant was unable to demonstrate that the difference in race was the basis for the difference in treatment (i.e. that the claimant was not offered the role and the other applicant was offered the role).  There were arguments made in relation to the composition of the panel and the way in which it had been conducted.  However, the Tribunal found that this has been in accordance with the good practice documents.  As a result, the burden did not shift to the respondent and the race discrimination claim was dismissed.

Practical Guidance for Employers:

This case demonstrates the importance in ensuring that the policy processes within an employer are followed when it comes to recruitment.  The Respondent in this situation was able to point to the process from the advertisement, composition of the panel, the questions and the scoring process. This provided an evidential basis for the objective approach being taken.  A less detailed approach may have been more difficult to stand over and so should serve as a reminder for employers to ensure that the recruitment processes are well set out in policy.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/