When bringing a claim of discrimination in relation to an advertisement for a job, the EAT has held in Garcia v The Leadership Factor Ltd that claimants must be able to demonstrate that they had a genuine interest in applying for the post.
Basic facts
The Leadership Factor Ltd posted an online job advertisement for telephone interviewers with a “professional manner and … a clear voice”. The company described the role as being 100 per cent phone based, albeit located in Huddersfield, conducting customer satisfaction research. One of the questions asked of prospective applicants was whether they were in good health.
Mr Garcia lodged tribunal claims alleging that the advert constituted direct and indirect disability discrimination because, as someone with a stammer, he had been deterred from applying for the position.
Tribunal decision
With regard to the claim of direct discrimination, the tribunal held at a preliminary hearing that the relevant comparator would be a person who was not disabled and “did not have a clear voice/was not in good health”. However, the judge considered that the claim had little prospect of success, firstly because Mr Garcia could not identify why a non-disabled candidate with these characteristics would not also have been put off from applying for the role; and secondly because he was not convinced that Mr Garcia was genuinely interested in the job.
As for the claim of indirect discrimination, the judge accepted that someone suffering from a stammer would be disadvantaged by a requirement to have “a clear voice” and therefore might be put off from applying. However, he was satisfied that the company had a legitimate aim in requiring employees for this particular type of role to have a clear voice and that it acted proportionately in seeking to encourage applications from those who satisfied that criterion. As for the question about being in good health, the judge could not see why someone with a stammer would answer that question negatively.
Overall, the tribunal was not convinced that Mr Garcia was even interested in applying for the role not least because it was based in Huddersfield while he lived in Hounslow. It therefore concluded that the indirect claim also had little prospect of success.
The tribunal made a deposit order requiring Mr Garcia to pay a specified sum of money as a condition for advancing his claim. He appealed against that order.
EAT decision
Dismissing the appeal, the EAT held that the tribunal had correctly identified the comparator for the purposes of the direct discrimination claim as a non-disabled potential applicant with the same abilities as Mr Garcia. The tribunal judge was therefore correct to conclude that the claim of direct disability discrimination had little reasonable prospect of success given that Mr Garcia could not establish that he would be treated less favourably than the correct comparator.
With regard to the tribunal’s assessment of the company’s justification defence (in other words, that they had a legitimate aim in advertising for people with a “clear voice”), the EAT was satisfied that the judge had correctly assessed the likelihood of the proposition being established at a full hearing. Given that this was a preliminary hearing, the judge had simply relied on what appeared to him to be a self-evident proposition, given the nature of the role.
Finally, the tribunal’s conclusion that Mr Garcia would not be able to show he was genuinely interested in the position was legitimately based on the objective factors that it identified. In particular, this included the fact that he currently lived in London and would have needed to relocate to Huddersfield in order to take up the post.
The order was therefore justified.