Boris Johnson

Discover the complexities of discrimination claims in relation to the government's hiring practices during the Covid emergency, as the High Court rules against allegations of discrimination.

Michael Connolly

‘Subjective hiring practices’ have long been under suspicion as having the potential to perpetuate existing workforce profiles or freezing out minorities or women.

The law here is complex and nuanced. Section 19 of the Equality Act 2010 is the key provision. It outlaws a practice, provision, or criterion (PCP) that puts the claimant and the claimant’s group (e.g. by race, sex, disability, etc) at a particular disadvantage, and cannot be justified by the employer as being necessary for the job. This is known as indirect discrimination.

In R (Good Law Project) v The Prime Minister ([2022] EWHC 298 (Admin)), the High Court held that the ‘high-end’ appointments made by the government during the Covid emergency were one-offs, and as such insufficient to amount to a PCP. So the claim of indirect discrimination never got past the first element.

The case law on one-offs and PCPs is not straightforward. In Nottingham City Transport  v  Harvey ((EAT, 5 October 2012) [2013] Eq. L.R. 4), a badly handled grievance process, which could not be described as a provision or criterion, was argued to have been a practice. This was rejected.

By contrast, in Starmer v British Airways ([2005] IRLR 862 (EAT)), a one-off refusal of a pilot’s request to work part-time was held to amount to a practice. These cases were explained by the Court of Appeal in Ishola v Transport for London ([2020] ICR 1204) as distinguishable on the basis that the Starmer refusal was one capable of repetition, i.e. applied in the future to similarly situated workers ([39]). The High Court in Good Law Project adopted this distinction, and concluded that the appointments were one-offs and so did not amount to a PCP. However, word-of-mouth hiring, such as this, does not so easily fall one side or the other of the distinction. It is fair to say that a badly handled grievance process is neither a provision nor criterion. Given this, the actual ratio decidendi of Harvey is that a one-off act of mistreatment could not amount to a practice. (Further, the refusal in Starmer is better described as a provision criterion. There is no need to explain the case as one involving a practice capable of repetition.) Whereas a one-off act of word-of-mouth hiring is just as capable (if not more) of repetition as the refusal in Starmer, and just as capable as amounting to a provisional criterion, such as, a criterion of being appointed is ‘being personally known to X’.

Policy suggests that word-of-mouth hiring ought to be susceptible to challenge under equality law because of its propensity to perpetuate existing unbalanced workforces, and/or freeze out minorities or women. This is because word-of-mouth hiring is likely to reproduce a fair representation of the existing workforce. If it was male dominated, that is likely to persist. If it is largely white, not only is it likely to be replicated, it could also fail to account for recent immigration in the catchment area. Hence, the statutory Code of Practice on Employment stated that the PCP may include ‘“a one-off” or discretionary decision’ (para 4.1). It was also suggested obiter in the Court of Appeal back in 2002 that word-of-mouth hiring could amount to indirect discrimination (Coker v Lord Chancellor [2002]ICR 321 [57]).

In Good Law Project, the evidence suggested that if the appointments were held to be PCPs, they were unlikely to have an adverse effect on racial or disability groups (as claimed). The Court noted that ‘several members of the present Cabinet (and the Cabinet as it was in 2020) are from ethnic minorities’ ([99]). But to block all this type of recruitment at the PCP stage suggest that word-of-mouth hiring could never be challenged, no matter how egregious the effects.

There will be meritorious cases, of course, such as the appointment of a family member into a small family business, especially if the post is one of trust. Such appointments can be assessed under the defence of justification, which can account for reasons other than the protected characteristic in question, which are necessary for the job. This provides tribunals and courts with more latitude to implement policy.

Author: Dr Michael Connolly is a Reader in Law at Portsmouth Law School