The Case

Willmott v Woolworths Ltd (2014)

Mr Willmott applied for a position with Woolworths in Queensland. He was unsuccessful in obtaining employment. Mr Willmott then brought a discrimination claim against Woolworths, alleging that the information they requested in their online job application forms was discriminatory. The form could not be submitted unless the information requested was provided.

The Verdict

The Tribunal found that it was discriminatory to require online job applicants to provide their date of birth, gender and proof of their entitlement to work in Australia. The Tribunal rejected Woolworths’ argument that the information was “reasonably required” (which is the defence that must be met under the Queensland Anti-Discrimination Act 1991). Woolworths’ arguments, and the Tribunal’s reasons for rejecting them, are as follows:

1. Woolworths alleged that applicants’ dates of birth were reasonably required:

• because some positions could only be undertaken by those 18 years and over;
• to calculate pay rates; and
• to differentiate between candidates with the same name.

The Tribunal found that Woolworths simply needed to ask whether applicants were 18 years and over and explain why the information was being collected. It was only when the position was offered that a date of birth would be required.

2. Woolworths alleged the gender questions were reasonably required to meet the Australian Government’s gender reporting requirements. The Tribunal found that Woolworths could have made a reasonable estimate of the applicant’s gender by using the name provided. Further, the government’s gender reporting requirements had been delayed to April 2015 and this only applied to applicants who became employees.

3. Woolworths argued that it reasonably required proof of the applicant’s right to work in Australia to ensure it was not employing unlawful citizens and to comply with the Migration Act 1958 (Cth). The Tribunal again found that this information was only required when the applicant was made a job offer, not at the application stage.

Mr Willmott was awarded $5,000 in compensation for embarrassment, humiliation and loss of the chance that he may have been successful in his application had the discrimination not occurred.

Woolworths has since amended its online job application forms, removing some questions and making others optional.

The Lesson

While this is a Queensland case, it does have repercussions for employers under both federal discrimination laws and discrimination laws in other States and Territories.

Employers should ensure that all information sought in their recruitment applications is necessary to consider the applicant for the role. If the applicant is later offered and accepts a role, further information may be sought from them for administrative purposes.

This is important if you want to avoid a claim that any of the information you seek could be used as a basis for discrimination.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.