Disabled lawyer snubbed during recruitment process was discriminated against, tribunal rules

Judge says employer could have taken ‘less discriminatory’ approach to checking references of job applicant with IBS and need for flexibility

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A disabled junior lawyer who was snubbed during the initial stages of recruitment following her disclosure of irritable bowel syndrome (IBS) and flexibility requirements was discriminated against, a tribunal has ruled.

The remote tribunal found that Mrs K Farrow had been “open and honest” about her disability resulting from IBS and needs for flexibility, but Foster Clay Law (FCL) – which has since rebranded to Inspire Legal Group – “abruptly” terminated the recruitment process after speaking to Farrow’s previous employer. 

The tribunal rules that the discriminatory effect of the unfavourable treatment on Farrow was significant, as it was “damaging to her self-confidence”, and that there were other “less discriminatory” avenues for FCL to take. 

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The tribunal heard that Farrow, who had completed her legal practice course in 2011, was engaged by her previous employer as a trainee solicitor from 2018 to 2019. During this employment, Farrow had a “long period of intermittent sick leave” relating to her IBS, and the relationship with her employer became “strained”.

Farrow told the tribunal that her employer’s lack of flexibility around hours and place of work resulted in absences and timekeeping issues, and she raised a grievance of unfair treatment because of her condition. Farrow then joined another legal firm in December 2019, completed her training and qualified as a solicitor in July 2020, but was not offered a position. 

Farrow then updated her LinkedIn profile to say ‘newly qualified solicitor seeking employment’ and Natalie Foster, statutory director of FCL – then a newly established law firm in the process of securing premises and staff – got in touch with Farrow and arranged a call on 22 June 2020.

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Farrow told the tribunal that she and Foster discussed her IBS in detail, and the tribunal accepted that Farrow was “forthright” about her condition because of a desire to avoid difficulties akin to those in her previous employment. 

The tribunal found that Foster made notes of the conversation and accepted that Farrow disclosed her IBS, but that she recorded it as “tummy issues” and did not record all that was discussed. It also found that Foster’s brother also suffers with IBS and she displayed understanding of the potential severity, as she noted “adjustments can be sorted/flexi work, [work] from home”.

The tribunal also found that it wasn’t made expressly clear that Farrow’s IBS amounted to a disability and Foster did not “join the dots” at this point. 

Farrow claimed that Foster made an offer of employment, which Foster denies but the tribunal noted that, either way, the recruitment process was proceeding subject to suitable references.

However, the references from her initial employer said she left over a grievance and that she had lots of absences at work because of illnesses, and that they followed a pattern of occurring on a Monday morning – something the tribunal noted was because Farrow “ate the wrong things”.

The other reference from her second employer was “strictly factual”, in keeping with the firm's usual practice. 

Foster called Farrow’s first employer and found that they detailed Farrow’s “shortcomings” on her absences, and Foster’s notes said “bad attitude? Not honest”, but she did not end the recruitment process at this stage. Foster obtained further references, which the tribunal said were “not glowing” about Farrow’s timekeeping, accuracy and attitude with co-workers and management. 

On 7 July 2020, Foster then emailed colleagues saying she did not feel “comfortable” with the comments around Farrow’s absence, and that, even if Farrow did work from home, she cannot be “supervised properly”. The tribunal said that while there may have been a number of reasons for Foster’s decision to end the recruitment process, this email confirmed the main reason was concerns about sickness and timekeeping raised in the references. 

On the same day, Foster emailed Farrow to terminate the recruitment process and, when Farrow made the link between the rejection and her IBS, Foster said the medical condition was not the reason, but provided no further explanation.

Employment judge Bright said it would have been less discriminatory, and not disproportionate in the circumstances, for Foster to “seek further clarification or references”.

He added that another “less discriminatory approach” would have been to disregard anything in the references related to disability or sickness absence, but acknowledged it would still leave issues raised around “boundaries, relationships, attitudes and accuracy”.

The tribunal ruled that the the discriminatory effect of the unfavourable treatment of Farrow was significant, as she was a “newly qualified solicitor with a disability, who needed significant flexibility, meaning her job search was unlikely to be straightforward”. 

Farrow’s claims of disability discrimination were upheld, but her claims of harassment relating to a disability were dismissed.

Lesley Rennie, principal employment law solicitor at WorkNest, said employers faced with less than complimentary references should “take care to investigate these fully to understand any link with any potential disability and should consider seeking legal advice before acting upon these”. She added: “The consequences of getting it wrong can be significant both in terms of compensation and reputational damage.”

Farrow was awarded £6,442 in pecuniary loss, £16,632 for injury to feelings – including £3,000 in aggravated damages – and costs of £4,867.

Inspire Legal Group has been contacted for comment. Farrow could not be reached.