Discriminated against for being a job share applicant? Ask the expert

A full-time candidate was offered a job I scored higher in interview than. Have I been discriminated against as a part-time applicant? I’ve been working for nine years in a large charitable organisation.  My part-time job share position was changed whilst I was on maternity leave.  However, when I returned from maternity leave I was asked to change my responsibilities again and resume some of the role I had been asked to give up as there was a gap in provision.  This role was not an official one, but a business case was going to be drawn up to create a permanent full-time position.  I covered this part time over a year and was told when the business case was approved I could apply for this as a job share. The job was advertised as both full time and job share applications would be considered.  I asked my boss what would happen if they didn’t find a job share and she said we’d cross that bridge when we came to it. It turned out that even though I scored higher than all other candidates in interview they offered it to a full-time applicant and told me this was a business decision and not personal.  They only interviewed one other internal applicant for a job share. It felt like they did this to tick a box and go through the motions of actively recruiting for other job share candidates. I was told post interview that me getting the job was contingent on another job share applicant being successful but as none were, they gave the job to a full-time candidate.  My organisation has no policies on job sharing or recruitment for job shares, and their overarching single recruitment policy states that candidates are scored and the one who gets the highest score gets the job.
I filed a grievance and they apologised for bad practice. I then appealed and the HR manager said he’d seek a solution, but nothing has happened and they are citing budget problems.  Can you please advise?

You do appear to have been treated unfairly although there are some gaps in information which would allow me to be more certain. I do suggest that you obtain formal advice based on the full facts of your case.

You may be able to claim at Employment Tribunal for direct and/or indirect sex discrimination under the Equality Act 2010 if you are able to establish that the unfair treatment was because of your sex and/or part-time status.

In order to make a claim for Direct Sex Discrimination the successful full-time applicant would need to be a man. In other words, your employer decided a full time man was better than a part-time woman. If the successful job applicant was a woman, then it would not be Direct Sex Discrimination.

It’s more likely that you may have a claim for Indirect Sex Discrimination. This is where an employer has applied a “provision, criterion or practice” which has the effect of disadvantaging one sex over another and for which there is no objective justification. In these types of case the discrimination is not necessarily overt but the effect of applying this provision is that there is a there is a disproportionate detrimental effect on employees of one sex. Your employer has recruited a full –time candidate (which can be either a man or woman) over yourself, a female part-time candidate who scored the highest and has a proven track record of fulfilling all or part of the role. As more women than men work part-time, you are linking your part-time status to your sex.

In Indirect Sex Discrimination cases the employer has the opportunity to justify their decision- was there a good reason for taking that decision (known as objective justification). This will be dependent on the facts and I’ve listed below some of the questions they would need to answer:

– How was the role advertised internally and externally? You say they did not inform you about the recruitment process or provide you with details which obviously is not good employment practise;

– Did the employer interview other internal/external job share candidates? You refer to the sole internal job-share candidate but it’s not clear whether there were other external candidates who may have applied.

Can they prove why the external job-share candidates were unsuitable for the role?

What is the justification for the role to be full-time? Have you seen the job specification/role and responsibilities? Why couldn’t you do it part-time – after all you say you had fulfilled some of that role already.

– Was cost/budget a factor? If so by how much – there would need to be sufficient proo

– How much was the difference in points between the successful candidate and yourself- was it marginal?

It is possible that your employer can justify their decision but it is very dependent on the facts.

In order to make either of these claims you need to file your claim at an employment tribunal within three months after the date of the act of discrimination- which is the date you found out that you were unsuccessful in your application. Please be aware of time passing!

You may also possibly have a claim under the Part –Time Workers (Prevention of Less Favourable Treatment? Regulations 2000. You have the right to be treated the same as full time employees unless again your employer has an objective justifiable reason for this treatment. You can ask your employer for written reasons for this different treatment. The employer must reply within 21 days. If you are unable to reach agreement and you think you can show you have been treated unfairly you can make a claim in an employment tribunal. This must be made within three months of the date of the less favourable treatment- again the date you found out you were unsuccessful in your application.

You say that you filed a grievance which was unsuccessful and were persuaded to withdraw your appeal. Given that you were persuaded by HR to withdraw I am sure that you could reinstate your appeal by application or ask for the written reasons under the Part-time Workers Regulations.

Once again I suggest you seek formal advice quickly based on the full facts of your case to ensure you do not miss out on the time limits.

Ruth Renton is the founder and director of Renton Associates Ltd, providing commercial and practical Employment Advice and Training in the Workplace. She is also a working mum of four kids – her biggest challenge! To contact Ruth for advice or training please email her on ruth@rentonassociates.com. Her website is www.rentonassociates.com and she can be found on linkedin.

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