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Diverse views accommodated but discriminatory behaviour isn't

Diverse views accommodated but discriminatory behaviour isn't

Published: 4 October 2019

Employment solicitor, Hollie Whyman, spoke to Recruiter magazine about how to handle candidates with diverse views that could be regarded as discriminatory.

Recruiters should make it clear to candidates at interview that while they will accommodate diverse views, they will not tolerate discriminatory behaviour.

The advice follows BBC reports about Christian actress Seyi Omooba, who lost her lead role in the stage production of The Color Purple, after historic social media posts came to light where she stated homosexuality was not “right”. Omooba now says she is planning to sue both the theatre and her former agents.

Commenting on the implications of the case for recruiters, Melanie Stancliffe, partner at Irwin Mitchell, told Recruiter that while hirers do not have the right to trawl through a candidate’s social media, they should explain that they expect candidates to express views that are professional, appropriate and that aren’t discriminatory.

“You’ve got almost a conflict between two protected characteristics. You’ve got the right of someone to express their religious belief and you equally have the right of somebody not to be discriminated against because of their sexuality orientation.

“For recruiters, they obviously want to attract and put forward candidates that are professional, meet role spec [and aren’t] discriminatory. I think that’s the way to deal with it.

“The bottom line is you’re having to deal with a lot on trust, and neither you nor the employer can do more to sense check other than take up references. You’ve got to be careful.

“They need to talk to candidates about being professional and non-discriminatory, and I think they mustn’t go through social media. They must also respect that there will be a range of candidates – the best candidate for the role might be someone who has a strong religious belief that is incompatible with somebody else’s lifestyle. We live in a world where that can happen. I think so long as someone is not discriminating, we have to be prepared for diverse views; you have a diverse view – you can’t discriminate.”

Stephen Jennings, partner solicitor at Tozers Solicitors, agrees, telling Recruiter problems arise when protected characteristics under the Equality Act 2010 conflict.

“The question is whether recruiters should tolerate negative views on homosexuality under the protection of religious freedom of expression.

“Recruiters should distinguish between holding views and expressing them. Turning down a candidate simply based on their religious views or beliefs would be direct discrimination – this is very difficult to justify. However, turning down a candidate who insists on expressing those views is potentially justifiable, especially where this breaches a procedure or causes offence to others.

“There is case law on this – the case of Apelogun-Gabriels v London Borough of Lambeth, where an employer dismissed an employee who was distributing homophobic biblical extracts. The tribunal dismissed the employee’s claim for direct discrimination on the grounds that the material he distributed was hostile to homosexuals and the employer would have treated any other member of a religious group in the same way. It was, therefore, the employee’s conduct that was the justification for the dismissal, not his religious beliefs.

“Recruiters should put in place an equal opportunities policy, which prohibits any behaviour that amounts to unlawful harassment. This would include expressing religious beliefs that are derogatory towards homosexuals. However, the recruiter will need to ensure that their policy is balanced and applies equally to all religious groups – the policy needs to be defensible as a proportionate means of achieving a legitimate aim.”

Meanwhile Hollie Whyman, solicitor in the employment team at law firm Fletcher Day, recommends that conflict between the protected characteristics of religion/ belief and sexual orientation should be dealt with delicately as individuals may possess strong views.

“Whilst recruiters should avoid discriminating against candidates due to their holding certain religious views, they should not give candidates free reign to express those beliefs regardless of the impact on others. It would be sensible for recruiters to put in place (and make candidates aware of) a policy prohibiting behaviour that would or could be offensive to others and which may amount to unlawful harassment. However, this should be proportionate and apply equally to harassment in respect of all protected characteristics.”

Also commenting on the case, Peter Wright, managing director at DigitalLaw, told Recruiter: “If you’ve got [discriminatory] comments that are made… you then have a strong indicator that that person might have problems with other people that they are working with, and could be disruptive.”

This article was written by Graham Simons and first published by Recruiter on 1 October 2019.

Hollie Whyman | Solicitor | Employment

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.