Another Friday is upon us which means it is time for another dose of case law. Last week was our monthly employment law update with features on the women’s US equal pay dispute, bullying and harassment at the Ministry of Defence and Orange and holiday pay life leave at Molson Coors brewers. Prior to that, our last case law update concerned race discrimination, harassment and victimisation.
This week we are looking at sex discrimination and costs. This case serves as a reminder to employers that the Equality Act not only covers existing employees but also prospective ones. As with all direct discrimination cases, the key to success for a Claimant is to establish a prima-facie case and then shifting the burden of proof. Those unfamiliar with this concept should see our previous case of Royal Mail Group Ltd v Efobi.

Rule 73 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that Employment Tribunals will only make an award for costs if a party has acted vexatiously, abusively, disruptively or otherwise unreasonably during the course of proceedings, or, if the claim had no reasonable prospects of success. Unlike fast or multi-track County Court claims, costs are very rarely awarded in Employment Tribunal claims as the threshold for doing is so high.

Mr Tabidi, the Claimant, was a freelance journalist who had done casual work for the BBC’s Arabic radio service for three years. The Respondent, the BBC, had a lot of grievances in its Arabic radio department which supposedly stemmed from a lack of gender diversity in senior positions.

The Respondent launched a new project to expand the Arabic radio services’ audience. The key expansion demographics were young and female listeners. To staff the project, the Respondent created two broadcast journalist roles and one senior journalist role. Key skills for each role were the ability to find and share stories and utilise social media to promote stories.

The Claimant applied for the broadcast journalist role. There were 17 applicants, ten men and seven women. The applicants were scored on their skills, knowledge and experience by the Respondent’s interviewers. The candidates were then given a written test.

Eight applicants passed the test, including the Claimant. Of the remaining candidates, six were female and two were male. The remaining candidates were invited to a competency assess interview. All candidates had access to the Respondent’s intranet which included guidance on competency interviews. The Claimant did not utilise this resource.

The Claimant attended his interview and scored badly on the competency questions. Particularly he did not discuss how he would utilise social media to research and promote stories, which was a key element of the new role.
The Claimant received the second lowest score for his interview. The two highest scorers were women and the lowest scorer was also a woman. The other male applicant got the fourth highest score.

The two highest scoring female applicants were successful. The senior broadcast role was filled by a male applicant. The Claimant’s application was unsuccessful and he complained that as a man he had been discriminated against.

The Claimant initiated an Employment Tribunal claim for direct discrimination. He argued that he scored less than his colleagues because he was a man and the Respondent had only recruited two women because of its diversity issues.

The ET rejected the claim. It held the Claimant was unsuccessful at interview because he performed badly in the interview and did not research how the Respondent’s interview procedures were performed. As such, there was no factual basis to establish a prima- facie case of discrimination and the burden of proof did not shift to the Respondent to justify the treatment and the claim failed. The Claimant was also ordered to pay the Respondent £4,550 in costs for bringing a claim that had no reasonable prospects of success.

The Claimant appealed against the decision and the costs award. The EAT rejected the appeal. It held the ET had made the correct decision to both dismiss the claim and award costs. The costs had only been limited to the cost of counsel for the hearing and were not unreasonable based on the merits of the claim.

The takeaway point:

Unsurprisingly, a male in a male-dominated industry was not successful in his discrimination claim. The fact the Claimant objectively performed worse than both successful female applicants, and, a male was recruited to the more senior role also shows that even if the burden of proof did shift, the Respondent did not discriminate against the Claimant because the interview was fair and there was no positive discrimination to promote women to more senior positions.

This case highlights how bringing a claim that has no reasonable prospects of success can result in a costs award being made against the losing party. The prospects of success applies to both the claim and the defence and employers can also have costs awarded against them in such circumstances. Compared to the County Court and High Court, these costs can be relatively nominal but do add an additional financial risk to any party running a claim for the sake of supposed principle.