An African job applicant who made two applications to Virgin Atlantic, one providing his real name and African ethnicity and a second giving a false name and stating he was White British, made a claim for race discrimination against Virgin Atlantic when the latter application was offered a telephone interview but his real application was rejected.
Mr Maxson Kpakio applied for the position of Customer Service Advisor with Virgin Atlantic in October 2012, submitting an application form, CV and equal opportunities form stating his real name and ethnicity of Black African. When this application was rejected by Virgin, Mr Kpakio submitted a second application giving a false name of Clive Owen and stating his ethnicity as White British so as to “test” Virgin Atlantic’s recruitment practices.
When Virgin invited Clive Owen to progress to the next stage of the recruitment process and take part in a telephone interview, Mr Kpakio made a claim for racial discrimination under s39 of the Equality Act 2010 (the Act) arguing his real application had been rejected due to his ethnic origin – a protected characteristic under the Act.
S23 of the Act states that when a comparison is being made between a claimant and another individual, there should be no material difference between the two parties. Important in this case was the fact that the second application submitted by Mr Kpakio, in the name of Clive Owen, was NOT identical to his original application, despite what had been suggested in press coverage of the case. The second application made specific reference to experience of “live chat” (use of instant messaging in customer service delivery) and further experience in servicing customers whereas Mr Kpakio’s own application lacked any formal customer service experience in a retail environment. Mr Owen’s degree subject and dates of study also differed from Mr Kpakio’s own application. This led the tribunal to determine that the test was not a reliable one and that there was a clear commercial reason as to why Mr Owen’s application was progressed and why Mr Kpakio’s was not.
The Tribunal held that Virgin Atlantic did not reject Mr Kpakio’s application due to his race but because his application failed to meet the specified requirements as set out in the job advertisement.
Whilst this Tribunal has ruled in favour of the employer, this case acts to remind employers of the importance of ensuring recruitment processes are objective and adhere to the UK’s strict race discrimination laws. Employers found to have breached the Equality Act and discriminated against a person due to their race, disability, age or sexuality for example, will be subject to significant financial penalties.
David Dixey is Holmes & Hills' Employment Law specialist and is based at Holmes & Hills Solicitors in Braintree. David provides employment law advice for employers and employment law advice for employees from the firm's seven offices across Essex and Suffolk.
A Mackman Group collaboration - market research by Mackman Research | website design by Mackman
