An employer lost a discrimination claim from an unsuccessful job applicant after managers became focussed on recruiting someone who was the “best fit” for the role which led them to take into account factors which were discriminatory.
The unsuccessful candidate was a man in his fifties and the tribunal found that his age and sex were factors in rejecting him in favour of another candidate. The judge commented that he didn’t think the employer appreciated that the danger of going down the path of “best fit” was that they would be more inclined to choose a candidate who was more like them.
The case of Clements v Guys and St Thomas’ NHS Trust highlights the importance of employers being alert to possible discrimination issues during recruitment.
The Facts of the Case
The claimant, a man in his fifties, applied for a role as a Project Manager. He was invited to attend an interview as were four other candidates. All applicants were interviewed on the same day by a panel. After the interviews, candidates were taken to informally meet other members of the team, but there was no consistency in who met who.
Following the interviews, the claimant and another applicant KM – a woman in her twenties, were found to be the two best candidates having scored 81.5 and 80 respectively. There then followed a process during which, notwithstanding the claimant’s highest score, the panel proceeded to discuss who to select on the basis of who would be the “best fit”. The informal meetings with members of the team, who were mainly young and female, were an influential part of the decision making and the final decision was only made after discussions with them.
There were a number of comments made by team members which questioned whether the claimant was too experienced, whether he was too senior, that he was very different from the previous post-holder (a woman in her twenties) and how his future manager would manage him. Many of the Tweets of one of the team members who had provided feedback were “of a feminist or gender equality theme”.
The role was offered to KM. The manager called the claimant to tell him he had not got the job, conveying that a main factor in the decision was that she would find it difficult to manage someone who was much older than her – she referenced that she would be uncomfortable asking the claimant to do things given he has an 11-year-old daughter. She reassured him that he “had so much more to give compared to other applicants” as well as saying that it was an objective of that team “to encourage team members to develop their careers” and that given the claimant’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”.
The claimant made a complaint to the HR department about the ‘discriminatory recruitment process’, after this was not upheld he complained to an employment tribunal that he had been directly discriminated against because of his age and sex.
The employment judge agreed:
- It was found that here was little documentary scientific or objective proof that the employer’s rejection of the claimant in favour of KM, particularly as he had the highest score, was in no sense connected to his age. The decision was in fact significantly influenced by his age.
- The judge was concerned that 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 tribunal “did not think the employer fully appreciated that the danger in going down that path was that they would be more inclined to choose a candidate that was more like them”. The decision was ultimately made by the managers having been influenced by team members, a grouping the tribunal found to be predominantly female and with an average age of 30-32.
- While not as overt as the direct age discrimination finding, the employment tribunal was not persuaded that “the decision to reject the claimant in favour of KM was in no sense whatsoever because of his sex particularly given the concentration on finding the “best fit” when viewed against factors including the gender make-up of the grouping of people who contributed to the decision, the unconventional process adopted by the employer and the fact that the claimant achieved the highest score.
The employment tribunal awarded the claimant £7,600.
Kingfisher’s Advice
It’s important for employers to ensure that recruitment decisions are fair and non-discriminatory and that this can be evidenced if challenged. To help protect their organisation it’s advisable for employers to ensure that those who are involved in recruitment decisions have received appropriate training, particularly in relation to equal opportunities, as this can reduce the likelihood of issues arising.
Some common mistakes that can be made during a recruitment process include:
- Not being alert to the importance of the neutral wording of job adverts – for example advertising for a ‘waiter’ rather than ‘waiting staff’ suggesting discrimination against women.
- Asking inappropriate questions during interviews such as whether an applicant has any plans to start a family.
- Not being aware of the obligation to make reasonable adjustments to prevent a disabled applicant from being put at a substantial disadvantage, this can mean for example making reasonable adjustments to the interview process or arrangements.
If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd for advice on the facts of your situation.