“Weirdos and misfits” wanted by Boris Johnson’s top adviser Dominic Cummings

It’s being called “bizarre” and “rambling” by media commentators and is definitely not a typical civil service job advert, but Dominic Cummings has posted a 3000-word appeal for “weirdos and misfits” to apply for jobs in Whitehall via his personal blog.

The legal position

Before looking in detail at the content of Cummings’ post, it is important to understand the legal position on job adverts. Job applicants are protected from being discriminated against by virtue of section 39 of the Equality Act 2010. Job applicants are also protected from harassment under the same legislation.

An individual will be discriminated against if they are treated less favourably because of a “protected characteristic”. There are 9 protected characteristics, namely: age, race, religion, sex, sexual orientation, gender reassignment, pregnancy and maternity, marriage or civil partnership and disability. An individual will be harassed if they are subject to unwanted conduct relating to a protected characteristic which has the purpose or effect of violating the individual’s dignity, or creating intimidating, hostile, degrading, humiliating or offensive environment for that individual.

It goes without saying that certain jobs require people to have (or not have) certain characteristics. That’s allowed, provided that there is a genuine occupational requirement for having or not having that characteristic. For example, the requirement for a firefighter to be able-bodied whilst, on the face of it, would be discriminatory towards disabled applicants, can be justified.

Now turning to some of the more interesting qualities that Mr Cummings is looking for, according to his ad…

The job description

“You must have exceptional academic qualifications from one of the world’s best universities”, “You should… have an outstanding record at a great university”

When we advise clients on job adverts, we recommend steering away from subjective requirements like having a degree from a “great university”. Whilst having university-level education may be a genuine occupational requirement, it is harder to justify requirement for that degree to come from a “great” university, particularly given that a number of so-called Red Brick universities have poor diversity statistics. It is of note that later on in the advert, Mr Cummings states “…you don’t want more Oxbridge English graduates who chat about Lacan at dinner parties”. Having conflicting requirements in a job advert is also best avoided.

“In many aspects of government, as in the tech world and investing, brains and temperament smash experience and seniority out of the park. We want to hire some VERY clever young people either straight out of university or recently out with extreme curiosity and capacity for hard work.”

We normally advise clients to avoid language such as “recently graduated”, as this could be deemed discriminatory against older people. Mr Cummings goes somewhat further and actually includes a specific requirement for the applicants to be “young”. He appears to be basing this on his own viewpoint that people over the age of circa 21 are out of touch and may lack the “curiosity and capacity for hard work” that he is looking for. We always recommend that job adverts are checked carefully to ensure that personal biases are not allowed to creep in.

“You will not have weekday date nights, you will sacrifice many weekends — frankly it will hard having a boy/girlfriend at all”. “I’ll have to spend time helping you so don’t apply unless you can commit to at least 2 years.”

Aside from the obvious potential for discrimination on the grounds of disability, pregnancy and maternity, religion, and potentially even sex (as women are statistically more likely to have or take on childcare responsibilities which could make weekend working/a 2 year commitment difficult) there are plenty of other reasons why would advise keeping statements like these out of job adverts. For someone who is seeking to attract “young” talent, when millennials are notorious for wanting better work-life balance and flexibility as to how and when they work, it’s difficult to understand how this requirement for Mr Cummings’ personal assistant to sacrifice their weekends will attract the best candidates. There is also the fundamental issue of the Working Time Regulations 1998, which requires employers to give their employee adequate rest and which Mr Cummings seems to have forgotten about…

“People in SW1 talk a lot about ‘diversity’ but they rarely mean ‘true cognitive diversity’. They are usually babbling about ‘gender identity diversity blah blah’.”

Someone who identifies as a different gender which is not male or female, or as a gender which was not assigned to them at birth, could well find Mr Cummings’ belittling reference to “gender identity diversity blah blah” degrading, hostile or offensive. Of course, an individual does not have to actually possess a particular protected characteristic to find unwanted conduct relating to that protected characteristic offensive. As such, opinions or judgements which relate to particular characteristics and which could be deemed offensive should always be kept out of job adverts to minimise the risk of harassment claims, or even better, not voiced at all.

“I’ll bin you within weeks if you don’t fit — don’t complain later because I made it clear now.”

Threatening to “bin” someone for not fitting but asking for “misfits”. It is indeed a confusing piece of writing. For the avoidance of any doubt, dismissing someone because of a protected characteristic (or in the case of disability, something arising from that protected characteristic) is an act of discrimination. Furthermore, the almost threatening “don’t complain later” is at odds with the rights of an individual to raise concerns about the conduct of their employer and in particular, to make protected disclosures under whistleblowing legislation.

Wider implications

Mr Cummings talks about “the horrors of ‘Human Resources’ (which also obviously need a bonfire)” within his ad, and we are quite confident that Whitehall’s HR team will have a thing or two to say about Mr Cummings’ post. Notwithstanding that it was made via his own personal blog, there is no question that Mr Cummings is purporting to speak on behalf of No 10. As we all know, social media posts which are made “in the course of employment” can result in disciplinary action against the relevant employee, not least because of the reputational damage that such posts can cause. Despite the potential reputational issues that Mr Cummings’ post may have caused for the government, the more frustrating point for No 10’s HR team is that any job applicants who are refused employment over the coming weeks and months will be able to point straight at Mr Cummings’ blog as evidence of potential bias in the recruitment process.  As identified above, there are plenty of options for a disgruntled unsuccessful applicant to choose from…

 

If you are considering options for recruitment and/or restructuring and would like further advice, please contact our employment team.

Claire Knowles - Partner

Mark Alaszewski - Associate

Rebecca Mahon - Solicitor

Amelia Wheatstone - Solicitor 

Adam McGlynn - Trainee Solicitor

Insight article byClaire Knowles

Claire Knowles

Partner

+44 (0)7896 671 817
[email protected]

 

Insight article byRebecca Mahon

Rebecca Mahon

Solicitor

+44 (0)7772 331 455
[email protected]