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23-04-2013

Max Kpakio, who claimed he was rejected for a job interview with Virgin Atlantic until he submitted a second, similar application under the "Welsh-sounding" name Craig Owen, has lost his employment tribunal claim for race discrimination.

Virgin Atlantic said that they had contacted 'Craig Owen' because his application provided more relevant experience. In a written statement, the employment judge concluded that Mr Kpakio did not merely change the names and ethnicity in the two applications; they were different applications and the second ‘Welsh’ application was designed to meet the respondent's criteria for the role. On that basis, it is no great surprise that Mr Kpakio lost.

In fact, race discrimination claims, along with other forms of discrimination, are notoriously difficult claims to prove. In 2011/12, only 140 (or 3%) of race discrimination claims succeeded at a tribunal.

The low success rate does not necessarily mean that all is fair and equal in the job recruitment process. Many prospective employees are afraid to kick up a fuss for fear that it will harm their prospects, and there is a lot of anecdotal evidence of job applicants having to Anglicise their names in order to get job interviews. Most employment lawyers will come across some fairly blatant examples of racial discrimination at some point in their careers in the same way that they will come across a number of employees who are simply trying it on.

The Equality Act, which consolidated anti-discrimination legislation, makes it unlawful to discriminate against applicants on the grounds of race, colour, nationality or national or ethnic origin. The Act covers the entire recruitment process from the job advert, to the decision as to who to appoint.

To help ensure equality when recruiting, information about an applicant’s race, gender, disability etc should not be contained in the job application but detailed separately in an equality monitoring form. Those carrying out the recruitment should not be given the equality monitoring form. However that only goes so far. If an applicant has a name which would tend to identify them as belonging to a particular racial group (or being of a particular gender), then it can be very difficult for that employee to be certain that they have not suffered from any form of discrimination if they are not invited to an interview for a job they believe they are suitable for.

In such circumstances one way to test the rigour of an employer’s equal opportunities policy is undoubtedly to resubmit an identical application with a different ‘English’ name and a new address and to see whether an interview is offered.

Sarah Rushton

srushton@moonbeever.com

Tel: 0207 539 4147

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