Can an interview process in which male and female job applicants are asked exactly the same questions ever be viewed as discriminatory?

Simran Lalli

Article written by Simran Lalli, Solicitor, Employment department

It was found in a recent Employment Tribunal (ET) ruling that the short answer to this question is ‘yes’, where the interview questions themselves were skewed in order to highlight the strengths of one candidate at the expense of another (Greenwood v Pinewood School Ltd).

The case concerned a Maths teacher, Ms Greenwood, who had achieved excellent reviews during her 12 years working in the pre-prep division of a £21,000 per year private school. Ms Greenwood applied for a position teaching Maths to older pupils in the prep division. She and the only other candidate for the role, a man, were asked identical questions during their interviews. Ms Greenwood was rejected and the man was appointed.

In ruling on Ms Greenwood’s sex discrimination complaints, the ET noted that she was questioned about, amongst other things, her ability to coach boys’ rugby and cricket – a role in which she had no experience but for which the male candidate was particularly well qualified. Ms Greenwood was not asked about her abilities as a Maths teacher – the male candidate had never taught Maths before – nor was she asked about her strengths in teaching drama, music and girls’ sports.

In his notes following the interviews, the school’s headmaster expressed the view that Ms Greenwood was ‘possibly a little gentle’ to teach older pupils and that she ‘offered little outside the classroom’. He said that her body language did not always inspire confidence. By contrast, he commented on the male candidate’s ‘firm and strong handshake’ and described him as having a ‘very strong presence’ and as an ‘all-round schoolmaster’ with lots to offer in terms of extra-curricular activities.

The ET found that the questions were narrowly tailored to exhibit the strengths of the male candidate and Ms Greenwood’s weaknesses. The word ‘gentle’ described a stereotypically female characteristic and was contrasted to the masculine strength of the male candidate’s handshake.

The headmaster had appointed female teachers before but his repeated use of the word ‘schoolmaster’ indicated that he had been looking for a man to fill the position.

At a feedback meeting between Ms Greenwood and the headmaster following the interview, he compared her to three teachers who he felt met the criteria for the job, all of whom were men. The headmaster did not intend his comments to violate Ms Greenwood’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her, but the ET still found that the incident amounted to harassment, although not of the most serious kind.

The ET decided that Ms Greenwood’s claims for direct discrimination and harassment succeeded in part, and her claims for indirect discrimination and victimisation also succeeded. A further hearing at which the amount of Ms Greenwood’s compensation will be assessed will be held in due course.

There are a number of potential legal pitfalls an employer could face when recruiting a new employee. We advise employers on the best practice to follow at each stage of the recruitment process to ensure a fair process is adopted, reducing the possibility of unlawful discrimination taking place.

If you have any questions about how to conduct a fair interview process or any aspect of discrimination law, please feel free to email me or contact me directly on 020 8305 4208.