How old are your children? Ask at your peril!

A mother of two young children has been awarded over £90,000.00 in compensation after the Employment Tribunal ruled that she was discriminated against by her prospective employer on the grounds of her sex after it withdrew its job offer following an interview at which it asked how old her children were.

The Facts

In July 2022, the Claimant, Mrs F. Lee applied for a post as a Real Estate Marketing Manager at the London offices of the Respondent, R&F Properties QS UK Co. Limited.

After attending two interviews with the Respondent, the Claimant was formally offered the post of Senior Marketing Manager and the contract of employment was signed by both parties on 29 September 2022, with a start date of 1 November 2022.

On 20October 2022, the Claimant was asked to attend a Microsoft Teams meeting with Mrs Wenting Zhu, General Manager. At the beginning of the meeting, the Respondent’s HR manager informed Mrs Zhu that the Claimant needed to finish the meeting in time in order to attend to her children.

At the meeting, Mrs Zhu asked the Claimant about her work experience, the size of the projects she had worked on and who here clients were. The Claimant alleged that towards the end of the meeting and, out of the blue, Mrs Zhu then asked her “How old are your children?”. The Claimant answered that one of her children was 4 years of age and one was approaching 1 year of age.

On 26 October 2022, the Respondent informed the Claimant that its job offer was withdrawn, a decision which it confirmed in writing on 9 November 2022.

Following the Respondent’s withdrawal of the job offer, the Claimant made a claim to the Employment Tribunal alleging that in asking the age of her children and in withdrawing its job offer, the Respondent had directly discriminated against her because of her sex. 

The Respondent denied the Claimant’s allegations. With regard to the allegation that the question as to the ages of the Claimant’s children amounted to direct sex discrimination, it submitted, amongst other things, that Mrs Zhu had asked the question in the context of a “get to know you” meeting, as a courtesy and to build rapport. It further submitted that the question was one that would be asked of a man or a woman.

With regard to the Claimant’s allegation that the withdrawal by the Respondent of its job offer amounted to direct sex discrimination, the Respondent submitted, amongst other things, that the decision had been taken as a result of it needing to reduce headcount and not as a result of any unlawful discrimination.

The Employment Tribunal Decision

At the hearing in the London South Employment Tribunal, Employment Judge Caroline Musgrave-Cohen found in favour of the Claimant ruling that the Claimant had been directly discriminated against because of her sex, both at the time of Mrs Zhu asking the age of her children and when the job offer was withdrawn.

In reaching her decision that the Claimant had been directly discriminated against at the time she was asked the age of her children, the Judge refused to accept the Respondent’s position that Mrs Zhu had asked the question out of courtesy and to build rapport stating that

“we prefer the evidence of the Claimant, that the question was raised out the blue by Mrs Zhu in order for Mrs Zhu to learn something that she considered important in order to decide if the Claimant was the right person for the job, rather than in order to build rapport”.

The Judge also rejected the Respondent’s argument that Mrs Zhu would have asked both a man and a woman the ages of their children stating that

“In our experience it is not common for a man to be asked the age of his children. We think it is more likely than not that the Claimant was asked this question by Mrs Zhu because she is a woman and that the same question would not have been asked out of the blue of a man.”

In reaching her decision that the Claimant had been directly discriminated against when the job offer was withdrawn, the Judge rejected the Respondent’s argument that it had withdrawn the job offer as there was a need for headcount reduction stating that the Tribunal had not been provided with any documentary evidence to support this contention. She stated further that she found it

“more likely that not that she (Mrs Zhu) gave the instruction to withdraw the contract of employment from the Claimant following her conversation with the Claimant in which she asked about the age of the Claimant’s children.”

Mrs Zhu was awarded a total sum of £91,597.82 in compensation which included an award of £61,634.72 for financial loss which included lost earnings, pension and nursery fees and £29,963.10 for injury to feelings.

The Law – Direct Discrimination

Section 13 of the Equality Act 2010 defines direct discrimination in the following terms:-

“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

Sex is just one of nine protected characteristics that are covered by the Equality Act 2010. The full list includes: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.

Direct discrimination in employment is rendered unlawful by s.39 Equality Act 2010, which states as follows:

(2) An employer (A) must not discriminate against an employee of A’s (B)— (a) as to B’s terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.

Direct discrimination (except on the grounds of age) cannot be justified by an employer.

Considerations for Employers

Whilst it can be very tempting for an interviewer to try to “build rapport” with candidates during the interview process, the decision in this case serves a clear warning to employers that engaging in conversations during interview that have no relevance to the role in question and which relate to a “protected characteristic” could lead to allegations of discrimination.

To reduce the risk of claims of discrimination, employers should be careful only to ask questions of candidates which are relevant to the role. To this end, employers might want to consider having a list of questions which are asked of all candidates and to inform the interviewer not to deviate from this list of questions. Further, if a job offer is to be withdrawn, an employer should have evidence to support its reasons for doing so.

How Pinney Talfourd can help

Please do not hesitate to contact us by telephone to speak with a solicitor from our Employment team, without obligation, or simply fill out our enquiry form and one of our specialist employment lawyers will contact you.