An African-origin job applicant claimed race discrimination when he was rejected but his Welsh pseudonym was called for interview
In a case which received wide publicity Kpakio v Virgin Atlantic Airways Ltd (ET 1604280/2012) an employment tribunal had to consider whether or not an employer was guilty of race discrimination when it rejected a candidate for a job, but then offered an interview for the same role when he submitted a second application under a false name.
Facts
Kpakio applied for a job as a customer services advisor twice in October 2012: the first time in his own name; the second time with a false name, ‘Craig Owen’. The second application had a differently completed application form and CV, and an equal opportunities monitoring form in which he said he was ‘White British’. His first job application was rejected. The second application was put forward to the next stage, a telephone interview. Kpakio did not progress the second application and brought a claim for direct race discrimination instead. He originally claimed compensation but then dropped that, asking the tribunal instead to order an apology and a job offer (something the tribunal did not have the power to do).
Kpakio argued that the decision not to progress the first application was due to his ethnic origin. He was originally from Liberia and described himself as Black African. He said he had submitted the second application in the name of Craig Owen to “test” Virgin and its recruitment process.
Tribunal
The employment tribunal held that a mere difference in ethnic origin between applicants was not sufficient to bring a successful claim for race discrimination. Kpakio had to show facts from which, in the absence of an explanation from Virgin and on the balance of probabilities, the tribunal could find that he had suffered direct race discrimination. Kpakio failed to do this.
Kpakio had a university education, whereas Craig Owen (his fictional alter ego) worked on a supermarket checkout. Kpakio argued he was the better candidate. But in the tribunal’s eyes it was critical that the CV he submitted under the name of Craig Owen was different and had more relevant work experience in it, whereas his real CV did not meet the published criteria for the job. Kpakio may have had a degree, but ‘Craig Owen’ had more direct relevant work experience. Moreover, Kpakio’s application was considered by one HR manager and Owen’s by another. The real issue was not why Craig Owen was selected for interview, but why Kpakio’s application failed.
Comment
The Equality Act 2010 makes it unlawful to discriminate against applicants on the grounds of race, colour, nationality or ethnic origin. The Act covers the entire recruitment process. To help ensure equality when recruiting, information about an applicant’s race, nationality, disability and so on, should not be contained in a job application but detailed separately in an equality monitoring form. Those carrying out the recruitment should not be given the equality monitoring form (as was the case here).
Obviously, in the case of race and ethnic origin, there may be a risk that a recruiter makes assumptions based on the individual’s name, which will appear on the job application or CV. To help combat any potential discrimination (conscious or otherwise) employers should have a clearly drawn up job description and selection criteria and ensure, when selecting candidates to take forward, the candidates match that criteria. Recruiters may want to consider having application forms rather than CVs as this helps to ensure a consistent approach when assessing the relative merits of candidates. Finally, it is advisable to ensure that good records are kept so a potential employer has evidence to support any decisions that are challenged.
Sarah Rushton is an employment partner at Moon Beever solicitors.
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