Gender Diversity Bias Claim Fails to Convince Court
Many employers are taking laudable steps to increase diversity in their workforces by recruiting more women. However, as a case involving an unsuccessful candidate for a BBC radio broadcasting position showed, such considerations do not detract from the overriding obligation to avoid gender discrimination (Tabidi v British Broadcasting Corporation).
The case concerned a male broadcast journalist/producer who had worked for a unit of the BBC's overseas radio service on a freelance basis for about two years. As part of a new project, the BBC sought candidates for two employed positions. He applied and was one of eight shortlisted candidates. His application was, however, rejected following an interview. The two successful candidates were both women.
In pursuing a sex discrimination claim before an Employment Tribunal (ET), the man argued that the successful candidates lacked experience and were less qualified for the job than he was. Although they were asked the same interview questions as he was, he claimed that they were scored more favourably because they were women.
He pointed to an email sent by a human resources executive six months prior to the interview in which the service's managers were reminded that the issue of female under-representation on its workforce needed to be addressed. In another email, sent following his rejection, a member of the interview panel stated that the project was aimed at a younger audience 'with emphasis on Women agenda'.
In rejecting his complaint, however, the ET noted that he had been encouraged to apply for the job and that the same panel had appointed a man to a more senior role which had been filled as part of the same exercise. The ET accepted the BBC's case that his failure to get the job had nothing to do with his gender but resulted from his very poor performance during the interview. The ET's decision was subsequently upheld by the Employment Appeal Tribunal.
In challenging that outcome before the Court of Appeal, the man argued that the ET had failed to conduct a necessary comparison between his and the successful candidates' respective radio broadcasting experience. He argued that the successful candidates' lack of qualifications for the role was such that they should not have been shortlisted or permitted to proceed through the recruitment process.
In rejecting his appeal, however, the Court noted that he had not pressed either of those arguments before the ET. He had in any event failed to establish a clear-cut disparity in the panel's approach to his answers in interview and those given by the successful candidates. The ET's conclusions were based on an assessment of factual evidence with which the Court would not interfere.