Fairness in Hiring Process

To ensure fairness and transparency in selecting the best candidate for leadership positions at XYZ, the company will implement a four-step process. The first step is to include existing employees, such as Julie, in the interview process to show that there is no favoritism based on their relationships with senior management. In the second step, Mike and Derek will be called back for a second interview, along with other suitable candidates, where they can present their ideas for improving the Sales Team's performance. The third step involves selecting the top two or three candidates who demonstrated good leadership skills and ideas, and conducting a final interview to discuss work habits, hours, and lifestyle compatibility. This process will provide all candidates with an equal opportunity to express concerns and dreams, ultimately leading to a more professional and less risky way of choosing the best candidate for these positions.

Employment Law Assessment
1. What legal risks might XYZ be taking in following the course of action outlined in this
case?
XYZ has decided to hire Mike Replica. They decided not to hire the other three candidates which
involves certain risks under the Equality Act 2010.
Equality Law aims to protect certain groups of people who might be treated unequally or
disadvantaged due to prejudice or stereotyping related to some of their characteristics. The
Equality Act 2010 makes sure that people are not been discriminated against any more with this
legislation and protects certain groups such as:
 Age
 Disability
 Gender reassignment
 Marriage and civil partnership
 Pregnancy and maternity
 Race
 Religion and belief
 Sex
 Sexual orientation
Each of the three people they will be turning down for the Sales Director position can be said
that they are part of these groups mentioned above.
More specifically Julie Keene is one of the only two women employed in the Sales Team. She is
also much younger than the other people in the team. Therefore the risk in Julie’s case is that
she might say that she was discriminated against on the bases of direct age and direct sex
discrimination to an employment tribunal. Meaning that Julie was treated less favourably than
Mike Replica because of her age and gender.
As seen in cases like O’Reilly V BBC & Ano2 2200423/2010(ET), O’Reilly claimed that she was
discriminated against because of her age and sex and she was left without a job. On the bases of
needing younger people for the show BBC could not proven otherwise and the ET decided that
it was an act of age discrimination.
Furthermore the case of Perrin Vs Fred Christophers Ltd ( 13th of February 2016) where
Ms Perrin brought claims against her boss for unfair dismissal, direct age and sex discrimination,
harassment on the grounds of age and sex and failure to provide terms and conditions of
employment she won the case. On the bases of age and sex discrimination FC and Jon
Christophers were not able to prove that she was under performing and tried to replace her
with a younger person.
In cases such as sex and age discrimination the penalties can be up to an average award of for
sex discrimination £19,499 to a maximum of £442,366 and for age discrimination can me an
average of £10,931 to a maximum of 48,710.
In Aldo’s Viscida case he can claim that he was discriminated against his national origin- indirect
race discrimination. The Equality Act protects employees from discrimination, harassment and

victimization because of the protected characteristic of Race, which may include different
elements that often merge: race, colour, ethnic origin and national origin.
The equality Act protects such employees that their national origin –birthplace, the geographical
area and its history can be key factors that might not be treated fairly compared to another
person in the workplace.
The reason that Aldo was not chosen was his poor written English ability which this needs to be
specifically mentioned.
Aldo might claim £18,584 to a maximum of £374,933.
Derek Constant has been working in the company for a long time and he is considered as sort of
a deputy already. Now Derek can claim age discrimination and discrimination by association.
‘Discrimination by association occurs when a person is treated less favorably because they are
linked or associated with a protected characteristic. The person does not have the protected
characteristic but they are treated less favorably than others because of a protected
characteristic of a friend, spouse, partner, parent or another person with whom they are
associated.’ As stated in the Equality Act 2010.
In the case of Coleman v Attridge Law the claimant, even though she was not disable in any way,
was decided to be directly discriminated against and harassed because her son had a disability.
More cases followed like Truman v Bibi Distribution Ltd where he was dismissed because ‘his
heard was not in the business’ after his daughter suffered with cystic fibrosis. The Employment
Tribunal decided in favor of Mr. Truman and concluded that his dismissal constituted disability
discrimination by association, since Bibi had not enough evidence to support otherwise.
This is one of the riskiest cases that XYZ has to be able to support in taking this course of action
compared to the other two cases of Julie and Aldo.
By hiring Mike Replica the company should be aware of the risks that the Mike’s new ideas
entail. His first idea of changing the payment arrangements to wholly commission based is a
huge change for the people that are working there for some time can be something that is not
part of what they have agreed on when they were hired.
By dismissing the poorest performing members of the team that can cause a lot of grievances
and unfair dismissal due to the fact that their overall performance should be taken into account
not just their value of new sales. They might not be able to achieve their target because of
political events, due to sickness and many more circumstances. This will definitely not boost
their energy levels but can be considered as extreme measures and people will be intimated and
pressured into achieving more sales no matter what the consequences can be.
His third goal of having everyone undergo regular medicals even though might sound in the best
interest of the employees there are a few risks involved. People might feel that the company is
pressuring them into doing something they do not want to do and it’s personal. They also might
feel that their lack of achieving their goals (achieving desirable weight/quitting smoking)might
put them under more pressure that can end up causing them more health problems due to the
excessive pressure at work and the microscope their ‘personal life’ is under.

In general XYZ is taking procedure of appointing someone in Alan’s position very lightly with not
sufficient evidence to support their decision and they did not give everyone the chance to
explain their vision or plan for the new position. Even though Mike might look as the best
possible candidate , compared to what the other candidates are or have to offer, can be very
risky. Last but not least his relationship with the Finance Director’s nice might come up as a
strong case too and the company, as mentioned before, does not have much to support
otherwise.
2. What defenses are available for XYZ to deploy should an aggrieved employee or would-be
employee decide to bring a tribunal case? How strong a case could be mounted?
In this case where the company might be facing direct discrimination there is no defence for
this, but this case can be mounted with the occupational requirements. As stated in ‘BIS:
Department for Business and Innovation & Skills’ web site:
‘It may be lawful for you as an employer to treat people differently when recruiting. In very
limited circumstances, if you can show that someone with a particular protected characteristic
(on grounds of age, disability, gender reassignment, marriage and civil partnership, race,
religion/belief, sex or sexual orientation) is central to a particular job, then you can insist that
only someone who has that particular protected characteristic is suitable for the job. This would
be a genuine ‘occupational requirement’ (GOR)’
The company can explain that Julie’s sex was not the reason she was not promoted but rather
her age. The company has to explain that even if there was a young man her age they would
still not hire that person, but they could choose to hire an older woman. This case does not
seem to have good odds for the company to win but the company needs to show that the
‘comparator’ meaning the person they choose was not decided due to his age.
Now as far as the age, referring to the direct age discrimination as the Equality Act says that it
can be justified if the reason is ‘proportionate means of achieving a legitimate aim’. More
Specifically in ACAS website ‘the Equality Act 2010 – guidance for employers’ it explains:
‘The Act protects people of all ages. However, different treatment because of age is not
unlawful direct or indirect discrimination if you can justify it, i.e. if you can demonstrate that it is
a proportionate means of meeting a legitimate aim. Age is the only protected characteristic that
allows employers to justify direct discrimination.’
So the company has to prove that by promoting Julie might actually harm the company. XYZ will
need to show enough evidence to the tribunal explaining that she was not promoted because in
case she would have taken Alan’s position she would not have had the desirable results of
leading the Sales teams. Her colleagues would not accept her as a leader.
By explaining these the company can have a case that it was not due to her characteristics (age
and sex) but rather than what the company actually needs after Alan being in the position and
running the Sales team so well for several years building a good clientele of about 500
customers a strong experienced person that can take over immediately. Alan’s successor needs
to be able to handle these clients as good as he was and even better in order for the company to
succeed it’s goal. Even though this is a case that is highly unlikely to succeed the company needs
to make an effort. Something similar was the case of John McCririck v Channel 4 Television

Corporation and IMG Media Ltd where channel 4 had do defend why they had to let John –age
73- go and hire someone half his age. Channel 4 explained that it was not his age the problem
but his persona and the way he was portraying his self in TV shows like Big Brother etc. His
person was only attracting a specific audience and by hiring someone else in his position was
actually helping improving their business radically. Channel four won the case.
In Aldo’s case the company has to show that the reason Aldo was not chosen for this position
was because of his written English therefore using again the ‘proportionate means of legitimate
aim’ . Even though Aldo is very good sales man and won several awards during his employment
at XYZ he is lacking the essential criteria of him being able to communicate appropriately with
the clients in written form and also writing reports. This is very important to the company and
needs a person that will keep the necessary standards for the Sales team. What the clients need
to feel is to feel that they are doing business with a serious and trustworthy company. His lack of
good written English can harm both the clients and the communication he will have with his
team.
This case can is weaker than Julie’s and the company can prove that there was no race
discrimination involved as in the case of Kong V Great Britain –China Centre (1991 IRLR 513;CA)
Now Derek Constant, a 60 year old man that was the longer serving member of the sale’s team
after Alan has a strong case. He was considered to be his deputy up to now. He was respected
by all and show to have all the qualifications needed for this job. Therefore his case is really
strong.
The company’s scepticism about his age is not really justified because Derek can decide
to stay and work long after the age of 65 and this should not in any be treated less favourably.
Furthermore the problems that Derek told the company, in confidence, about his wife being
diagnosed with multiple scleroses does not specify what his wife’s problems are or will be a
problem. XYZ does not know in which state she is and what kind of care she needs.
Moreover Derek was not given the chance to explain further about his plans on how to help his
wife or if his wife’s health problems are going to affect his work. There are too many
speculations about this and Derek is being deprived of the possibility to get a promotion and can
claim discrimination by association based on speculations about his wife and due to his age so
this case can be really difficult to justify XYZ’s decision.
3. What advice would you give the senior management team when running an exercise of this
kind in the future? Justify your answer.
When running a similar exercise in the future I would advise the senior management team to
use open competition for the recruitment. I would suggest they advertise the job openning so
that they can explain what kind of qualifications they need, experience and background in sales
along with all the ‘work habits’ the job requires.
This means that the job advert will clearly state that the job will require the person to be able to
have strong background on sales, with certain achievements and also will need a person that
will be able to lead the team to the next level.

Furthermore it will entail all the characteristics a person will need to have and the dedication to
assist the existing clientele of the company along with entertaining them in social events and
late night dinners according to the customer needs.
It will also make clear that this person will need to have experience as a leader and also a strong
written and verbal English ability.
When the company will have all this written down on the advert then it will give the chance to
all the people in the company to really think if they have these qualifications. It will furthermore
attract more people outside the company to apply for this position therefore having a bigger
applicant pool to choose from. This can create better and ‘healthier’ competition between the
candidates to prove that they fit for the job. It can also bring new people into the picture with
new ideas and maybe better qualifications than the four people that already applied for this
position.
Once the company gets all the applications then they can shortlist who they believe is better
suited for the job. Introducing a brief interview exercise can help clear things. This exercise can
include a problem that a leader will need to solve with an employee that has been working
there for a long time and also a letter needed to be sent to one of the most important clients
trying to persuade him/her in being part of newly specialized software.
This exercise will be checking their leadership and sales skills.
If they have lots of CVs with strong candidates then they can easily decline the ones that are not
as good. After the exercise it will be easier and fairer to reject candidates such as Julie and Aldo
if they don’t do well on the interview exercise. They can reject them with confidence based on
their results, explaining that they do not have the minimum requirements/qualifications. For
Aldo it would be his poor written English qualifications and for Julie would be her non existent
leadership background and/or ways to solve serious challenges with big clients.
The fact that they will include them in a fair interview process and give them the chance to try
will be sufficient to show these two existing employees that there was a fair and organised effort
to see if they fit with the job requirements. It will not let them in any way believe that they
choose i.e. Mike because of his relationship with the Finance Director. They might actually feel
themselves that they were not as good or ready to take this responsibility after the exercise.
The third step will be to call people like Mike and Derek for a second interview, along with other
candidates that they thought will be fitting for the job.
In this second interview everyone will have the chance to express their ideas and ways that they
can improve the performance of the Sales Team in XYZ.
Mike, Derek and the other candidates will have to present their ideas and the ways they want to
introduce these ideas to the team, along with ways that they will motivate the team. During this
exercise the company might come across better ideas than i.e. Mike’s that are less risky and
more democratic.
The fourth and final step of this process will be to get the two or three candidates with the best
ideas and leadership skill to talk with the interviewers about the actual work habits, work hours
and if this job fits their lifestyle.

In this section a person like Derek will have the chance to talk about his wife’s problem if he
wants. The interviewers will be very clear that this job entails long hours and nights out
entertaining the clients. The interviewers will also explain that they want to see a short term
and long term plan for this position and this will give in a similar case like Derek’s the
opportunity to express, if he wants, to work until the age of 65 or stay longer.
This final step will be the best and most fair way to give the candidates the same chance to
express the things that they might be worried about and/or their dreams and aims for the
company.
During this whole procedure I believe the company in the future will have a better and less risky
way of choosing the best candidate for positions like this. Both the employees will feel that they
are part of a fair process giving everyone the same chances and the company will also find it
easier and more professionally based ways to choose who the best candidate is. That whole
process will have assumptions just facts and a lot of choices for the senior management team to
take the right decision.
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