[Employers, HR managers, supervisors, and job-seekers: this post is for you.]

On turning down job candidates, and unexpected consequences.

KF had a health condition, which led to difficulties with her previous employers. She went looking for a job.

KF was contacted by a potential employer, a law firm. The firm had just been set up and was looking to recruit. KF spoke with a director, NF, and told NF about her health condition.

NF then contacted KF's referees. In the process, NF was told by KF's ex-supervisor that KF:
- left over a grievance;
- would not be re-hired due to sickness levels;
- had lots of absence from work due to illness ('many weeks in total');
- had some issues with staff members; and
- did very good work, "but unfortunately (was) not present long enough to be of assistance due to sickness absences”.

Another referee provided a reference which was "not glowing", identified weaknesses in time-keeping and accuracy, and indicated that KF had had more days off due to illness than expected.

The law firm decided not to hire KF.

What did KF do?

Why, she sued NF and the firm, of course.

For discrimination.

And succeeded.

And was awarded damages of more than £23,000.¹

Plus costs of £4,867.00.²

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NF and her firm ceased the recruitment process for KF after considering (a) KF's sickness absences; and (b) her need for flexible work arrangements. In doing so, they treated KF unfavourably because of her health condition (which constituted a disability). The Tribunal held that NF:

"...could reasonably have discounted the reference from [KF's ex-supervisor] and/or made further enquiries with [KF] and other referees about [KF's] absences to obtain a more objective picture. This would have been a less discriminatory act than simply terminating the recruitment exercise."

The Tribunal therefore concluded that terminating the recruitment process at this stage was "not proportionate in the circumstances."³

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There should be no unfair discrimination for disability. That much is uncontroversial.

But should employers have sole and absolute discretion in deciding whether to make a job offer to a candidate?

And should employers be obliged to give reasons for not making an offer?

I leave you to consider, and encourage you to leave a comment if you have a view to share.

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I end with takeaways for employers / job-seekers:

(a) EMPLOYERS: when turning down a candidate, consider documenting reasons which do not criticise them:

👍: "We need someone with sales experience, but the candidate has none."
👎: "This candidate took my breath away... thanks to their body odour!"

(b) JOB-SEEKERS: be careful about taking this decision too far. It does not mean that you can sue every company that does not offer you a job.⁴ Also, consider that doing so may end up further jeopardising your job search, unfairly or otherwise.⁵