Latest in Employment Law>Case Law>Salim v Western Health and Social Care Trust [2023]
Salim v Western Health and Social Care Trust [2023]
Published on: 02/03/2023
Issues Covered: Discrimination
Article Authors The main content of this article was provided by the following authors.
Jason Elliott BL Lecturer in Law and Barrister
Jason Elliott BL Lecturer in Law and Barrister

Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Background

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/

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 02/03/2023