Employment Law Case Update: Age Discrimination

All employers know that they cannot discriminate against an employee based on their age, but did you know that you also cannot discriminate against a potential employee?  Protected characteristics also apply to job candidates and our Employment Law team today reviews the case of Mr N McClements v Guy’s and St Thomas’ NHS Trust Foundation 2020 in which they had to decide whether a candidate was discriminated against because of his age and whether he was the right "fit" for the organisation.

Mr McClements applied for a project manager position at Guy’s & St Thomas’ NHS Foundation Trust and he and four other candidates were interviewed on the same day by a three-person panel.

After their interview, each candidate was given the opportunity to meet other members of the team. Mr McClements met the team around lunch time and described some members of the team as more concerned with eating their lunch than meeting him. He was not told that these informal meetings played any part in the selection process or that the other team members he met would be providing feedback to the interview panel.

After the interviews the panel met to score the candidates. Mr McClements was the top scoring candidate with a score of 81.5. KM, a woman in her twenties, scored second highest at 80. Having identified the top scoring candidates the panel then began a process of “moderation,” which was essentially a discussion to determine which of the two candidates would be the “best fit.” There was nothing “scientific” about this process and the panel did not review the scores or discuss whether any of the scores should be adjusted. After this process, Mr McClements still had the highest score.

The panel also asked the other members of the team to give feedback based on their informal meetings with the candidates. The comments given by the other members of the team were “influential” to the final determination. Some of the comments made by the other team members expressed concern that Mr McClements might be “too senior” and noted that he was very different from the previous post holder, a woman in her twenties. The panel decided to offer the position to KM.

Ms Lee, the regional lead for the Trust and one of the interviewers, phoned Mr McClements to inform him he had not been successful. The ET heard that on this call Ms Lee told Mr McClement she would be “uncomfortable asking you to do things given you have an 11-year-old daughter,” but that he “had so much more to give compared to other applicants”. Ms Lee also said that the team’s objective was “to encourage team members to develop their careers” and due to Mr McClement’s maturity, it was “better to employ someone at an early stage of their career as they would then progress to develop their career over a longer period elsewhere in the NHS”.

Mr McClements subsequently brought a claim for direct age discrimination and direct sex discrimination.

The Employment Tribunal (ET) upheld both of Mr McClement’s direct discrimination claims. The ET said it was “concerned that both conscious and unconscious bias were at play and that their focus on finding a person who was the “best fit” led them to take into account factors which were discriminatory.” The ET found that the reason Mr McClements was not selected for the position “was significantly influenced by his age.” The ET was also not convinced that the Trust’s rejection of Mr McClements in favour of a woman “was in no sense whatsoever because of his sex.”

The Trust was ordered to pay Mr McClements £7580, which included £5,000 for injury to feelings, and £1,468 compensation.

This case is an example of how internal biases, whether conscious or not, can make their way into the recruitment process. Whether a candidate is the “best fit” for a position should be judged according to fair, objective criteria. Employers should have measures in place to ensure that interviewers do not take into account criteria that may be discriminatory, such as the candidates’ age and gender.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.