You can sign up to our LinkedIn newsletter here.
The number of ageism cases coming to Employment Tribunals has been steadily rising. Recently I had a look at the report of a case because I wanted to understand what kinds of things are going on when ageism becomes part of court litigation. But just before we go into that let’s understand what happens at an Employment Tribunal.
What is an Employment Tribunal
In principle, an employment tribunal should be a relatively informal legal process for resolving disputes between employers and employees in the context of employment legislation. Alongside dealing with issues of unfair dismissal or unfair contract, they also deal with issues of discrimination for protected characteristics. This case was interesting to me because there were three claims of discrimination for three different protected characteristics. Although every case is different, there were some things that came out of this that I think could encourage others to consider, whether there is direct age discrimination in the way they are being treated by their current or potential employer.
The Background to the Case
Let’s just give you some context. This was a dispute between somebody who’s already working in the NHS who had applied for a promotion to a new role. The report is in the public domain, and I will be referring to some of the names, just because it’s helpful to make this concrete.
The claimant, in this particular case was Mr N Clements. He was complaining that he’d been discriminated against when he was applying for a job. An opportunity for a new job had arisen with his existing employer. He claimed that he’d been discriminated against on the basis of being too old, for being a man and a long term health condition (disability) for which the employer had failed to make reasonable adjustments. The claim on the basis of disability failed and I don’t think it’s useful to spend any time exploring it. But the issue of direct age discrimination was seen as well founded and succeeded. The issue of direct sex discrimination also succeed.
Why did Mr Clements win? This employer had run a formal recruitment process for the job. During the interviews, the candidates had been scored on several different criteria and the scores were recorded. It was clear that Mr Clements had outscored a younger woman who was then appointed. But the real killer issue, the thing that persuaded the tribunal that discrimination had happened, was that, alongside the formal interview process, each candidate was invited to meet members of the work team in an informal social setting over lunch. These team members made comments where they shared the concern about having somebody working for them who was older. They wanted to discriminate on the grounds of ‘cultural fit’. The Tribunal judged that ‘cultural fit’ was applied with bias in relation to his age and his gender. The team that he would have been working with were all women and they expressed concern about how that would work. The team he would be working with were younger than him. They were worried about how he would respond to management by a younger person. These concerns were explicitly shared by the existing team with some of the people on the interview panel. The Tribunal could see that there was a clear comparator who had been interviewed, who was a woman, and who was substantially younger in her mid-twenties.
As part of the interview process candidates were required to deliver a presentation, and points were awarded for original fun, yet thoughtful, and punchy presentations. During the interview the panel sought to establish the claimants; willingness to work with others that were younger than him and perform more menial tasks. The Tribunal judged that this was discrimination based on age. Mr Clement’s scores had been recorded as higher than the comparative woman. The panel claimed that the conversation they had with the wider team after the informal lunch was a process of moderation. But the Tribunal noted there was nothing scientific about the process, ‘you didn’t go back to scores and discuss whether scores were correct or not’. At the end of the process, the claimant still had the highest score. The employer said that the informal meetings were a sense check. The Tribunal is very clear that the comments from those informal meetings played a much more important part in the process than the employer claims. Team members questioned whether he was too experienced, whether he was too senior, and how the younger people would manage. They also talked about how he’s very different to the previous post holder, in her twenties, and nothing like her. In fact, there was evidence from the Twitter account of one of the people in the team, who identifies herself as a campaigner on social justice, inequality and a feminist. This constituted evidence that this team member was already prejudiced against a male candidate.
What the Tribunal Concluded
The claimant was told by the employer that he was unsuccessful. The main factor in the decision was that management are uncomfortable asking you to do things given you have an 11-year-old daughter. Although the employer recognised the claimant had so much more to give compared to other candidates. The employer also said, given the candidates maturity, it was best to employ someone at an earlier stage of their career as they then progress to develop a career over a longer period elsewhere in the NHS. The employer had clearly indicated that age was a consideration.
At the end of the process the Tribunals stated,
‘We are in no doubt on the basis of what occurred during the interview process, and based on our findings of fact, that both conscious and unconscious bias were at play and the focus on finding a person who was the ‘best fit’, let them take into account factors which were discriminatory. We find that the decision was ultimately made, having been influenced by team members, and this grouping to be predominantly female with an average age of 30 to 32. We are satisfied that the reason that the candidate was not chosen was significantly influenced by his age.’
‘Similarly, on the grounds of sex discrimination, particularly given the concentration on finding the ‘best fit’, when viewed against the gender makeup of the grouping of people who contribute to the decision, the unconventional process adopted by the employer, and the fact that claimant achieved the highest scores and the views repeated by one of the team members, we are clear the decision to reject the claimant in favour of the successful candidate was because of his sex.’
Ageism Lessons for Older People
The Tribunal were in no doubt that ageism occurred. Older people should stop pretending that ageism will never happen to them.
The Tribunal recognised that unconscious bias could play a part in ageism. It could be working against you too.
I hope this case will give others an encouragement to take cases of age discrimination to formal internal procedures, and, if necessary, take them to the Employment Tribunal.
Charles McLachlan is the founder of FuturePerfect and on a mission to transform the future of work and business. The Portfolio Executive programme is a new initiative to help executives build a sustainable and impactful second-half-career. Creating an alternative future takes imagination, design, organisation and many other thinking skills. Charles is happy to lend them to you.