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Jobseeker wins discrimination claim after recruitment agency rejects birth certificate

Makbool Javaid, Partner - Simons Muirhead Burton

In Ms A Khan v Brook Street (UK) Ltd Azma Khan is British born of Pakistani ethnicity. In October 2020, she applied to the Brook Street Recruitment Agency for employment which would entail assignment to a role with HMRC. She received a telephone call from an employee of Brook Street named Lucie Ospalkova who was to be her primary point of contact with regard to the application. Ms Ospalkova told Ms Khan that she was putting her forward to the “next stage”.

Ms Khan then received an email detailing the identity documents she was required to send in including her birth certificate which she duly submitted. Shortly after, she was telephoned by another employee who was not Lucie Ospalkova. The caller told Ms Khan that she was calling about her application. She asked for confirmation of her date of birth and address. This had already been provided in the initial application form and in subsequent documents. The conversation lasted three or four minutes.

Ms Khan felt uneasy about the call. Its purpose was unclear to her, since the information requested had already been provided, other than the precise location in London of her school. She considered it odd to focus on her schooling at her stage in her career. She suspected the true purpose of the call was to check her level of spoken English.

Khan “believed that she would shortly begin work with HMRC” and that her children were “excited” by the prospect.

However, Khan received an email from Ospalkova stating that they couldn’t accept her birth certificate. The tribunal found an unidentified senior employee had likely decided to reject the document.

Khan submitted a scanned certified copy of an entry in the Register of Births, Deaths and Marriages, certified and issued by the deputy superintendent registrar, which detailed her place of birth and her parents’ nationality.

Khan told the tribunal she felt “disappointed, angry, sad and tired” and that it was “ridiculous” to expect candidates to have their original birth certificate. She also felt “upset” for making her children believe she was going to have a job soon and “letting them be excited”.

The tribunal found Khan had adhered to DBS standards and satisfied Brook Street’s requirements. She had also submitted relevant documents alongside her driver’s licence, so “the rejection of her birth certificate and the decision not to consider further her application was not by the DBS guidance Brook Street supplied to its consultants”, according to the court filing.

Additionally, the tribunal learned that only one of the chosen candidates for the HMRC temporary job provided a birth certificate as identification and right to work status. It also said it is “not known” how many unsuccessful candidates there were, other than Khan, who did so.

According to Judge Murphy, the rejection of the certificate and failure to consider Khan’s application was discriminatory and noted that the omission to consider further her application was “less favourable treatment” because of her race, adding that “we are not satisfied that Brook Street has shown on the balance of probabilities, that the reason for rejection was Ms Ospalkova’s or anyone else’s error, or even if it was, the approach taken to the matter was free from unconscious racial bias”.

The judge ruled that Khan’s claim of unlawful discrimination regarding the rejection of her birth certificate was successful and awarded her £18,405.80 in compensation, including injury to feelings.

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