Wenting Zhu, vice president of property development company R&F Properties, had offered Fong Fong Lee a job as senior marketing manager in September 2022. But after an interview in October where Zhu learned the ages of Lee’s children, the job offer was retracted.
The tribunal found that Lee was discriminated against on the basis of her sex, and she was awarded £90,000 in damages.
Employers are legally required to recruit regardless of childcare responsibilities, Victoria Regan, employment partner at law firm Loch Associates, told HR magazine.
She said: "Employers are required to recruit fairly and without discrimination, based on the ability to perform the particular role, regardless of an individual’s commitments at home.
"Employers may go beyond their basic legal responsibilities, to support working parents by adopting a more flexible, family-friendly workplace culture that encourages a better work-life balance, is more inclusive and which ultimately reduces talent loss."
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Menjia Jin, senior HR manager at R&F Properties, offered Lee the job as marketing manager on 26 September 2022.
They discussed Lee’s need for flexible working, which Jin said they would be happy to offer her. Both parties signed the contract and Lee resigned from her previous role.
Jin asked Lee to attend a Teams meeting on 20 October to meet Zhu, during which she was asked about her previous experience and who her clients were.
At the end of the meeting, the tribunal noted that Zhu asked Lee “out of the blue” how old her children were, to which she responded one and four years old.
Though the respondent claimed that Zhu asked this to build a rapport with Lee, and that she would have asked the same question of a male applicant, the tribunal ruled that was not the case.
"In our experience it is unlikely that this question would have been asked of a man,” the report claimed.
It ruled that Lee left the interview feeling “deflated, confused and frightened” and concerned that the job offer would be withdrawn, so much so that she Googled whether that was a possibility.
The company told the tribunal that HR then claimed there had been a hiring freeze and they could no longer hire Lee. The tribunal decided, however, that it was more likely Zhu gave the instruction for Lee’s job offer to be retracted.
Lee was told her job offer had been withdrawn on 26 October 2022, and she was paid one week’s notice.
“Losing her job threw her into a state of panic, humiliation and upset due to the instability the unexpected news caused and made her worry about whether she should hide the fact she has young children from prospective employers,” the tribunal report stated.
Employment judge Musgrave-Cohen ruled that Lee’s sex was the reason her job offer was withdrawn, as it noted her childcare responsibilities were significant in Zhu’s assessment of her capability for the role.
It also noted there was no evidence that the company had implemented a hiring freeze.
This amounted to less favourable treatment, or discrimination, on the basis of sex. Lee was awarded full loss of earnings from October 2022 to May 2023, when she secured alternative employment, as well as £16,000 in damages for injury to feelings.
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Matt Jenkin, employment partner at Herrington Carmichael, explained that the tribunal reached its decision due to the context of the question about the age of Lee's children.
Speaking to HR magazine, he said: "Given the facts of the case, it is not difficult to see how the tribunal came to the conclusion that the claimant was treated less favourably because of her sex, and that as a result her claims for direct sex discrimination succeeded. While asking questions about children and their age is not in itself unlawful, the context of those questions is crucial.
"In this case, the tribunal rejected the suggestion that it was asked in the context of an informal 'getting to know you' session. Importantly, the tribunal found that the question had been asked out of context.
"With the tribunal awarding the claimant over £90,000 in compensation, it is a point that employers need to take into account and carefully consider why questions asked are being asked."
Employers could reduce the risk of discriminating against working parents by having a set list of interview questions for every candidate, Regan added.
She continued: "Given the potential risk of discrimination it is key to have a clear, consistent and ‘relevant’ set of interview questions, which can be applied equally to all candidates. This would serve as a guide to ensure that individuals are only assessed on their ability to undertake the job in question.
"Employers should resist the temptation to depart from this and engage in conversations that have no relevance to the role and could be perceived as potentially discriminatory, even if simply trying to ‘build rapport'."
