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NHS trust to pay £7,600 for age and sex discrimination

A ‘best fit’ hire landed the NHS trust in hot water when they were told to pay a 50-year-old man £7,600 for age and sex discrimination.

Guy’s & St Thomas’ NHS Foundation Trust were found to have discriminated against the claimant after informal feedback from the young and mostly female team was found to have influenced the hiring decision.

One of five applicants for a project manager role, Mr McClements was invited to interview. He was asked, as part of the interview process, to give a presentation on the support he would bring to team objectives.

Points were given for originality along with ‘fun yet thoughtful and punchy.’ Mr McClements’ presentation made use of his daughter’s Minions backpack which he used as a visual aid.

The panel of three questioned the claimant to establish whether he was prepared to work for others who were younger than he was. They also asked if he was prepared to do more menial tasks. One of the panel members asked Mr McClements whether he would ‘be a minion.’

After the interview process the candidates were introduced to other members of the team. The comparator in the case ‘KM’ a woman in her mid-twenties, also met other members of the team although these were not the same members that Mr McClements had met.

The tribunal agreed that there was no consistency in who the candidates were introduced to.

Following the interviews, it was shown that the two best candidates were KM and Mr McClements with scores of 81.5 and 80 respectively. There appeared to be some doubt about KM’s score which might have been lower.

Tribunal judge Hyams-Parish commented that after following a process where the claimant had achieved a higher score by two of the three panel members, they still chose to discuss which candidate to select based on the ‘best fit.’

Although the respondent described this as a ‘process of moderation’ it was clear to the tribunal that it was nothing scientific about it. Scores were not discussed – either whether they were correct or needed to be adjusted. At the end of the discussion Mr McClements still achieved the higher score.

Witnesses who were questioned stated that the informal meetings were no more than a ‘sense check’, they were not pivotal but – as the tribunal found – were influential.

Comments which came from the team told how they felt he was ‘quite different’ to the previous person (a lady in her twenties). They also noted that Mr McClements may be too senior.

The team expressed a concern that Ms Lee, who would be his manager, may not be able to ‘manage him.’

Judge Hyams-Parish stated that both conscious and unconscious bias were in play with the focus only being on the person who was the best fit. By doing this the team failed to consider the factors which were discriminatory.

Tweets from one member of the team were shown to the panel, with many tweets of a gender equality or feminist theme.

After KM was offered the position Ms Lee contacted Mr McClements to inform him that his application had not been successful.

The main reason for his unsuccessful application was that Ms Lee would have felt uncomfortable asking the claimant to perform tasks, given that he had an 11-year-old daughter. Ms Lee told the claimant that he had ‘so much more to give’ than the other applicants.

Ms Lee had further told the claimant that the trust had an objective which was to encourage team members to develop their individual careers.

Given his age it was ‘better to employ a person at an early stage in their career.’ By doing this the employee would progress and develop their career over a long period in the NHS.

The tribunal ruled that they believed the claimant had not been selected because of his age.

Although this was not as overt as a direct discrimination ruling, the tribunal was not convinced that rejecting the claimant over KM was not related to gender and age. Based on this the claim succeeded.

The tribunal ordered Guy’s and St Thomas’ to pay Mr McClements £5,000 for injury to feelings and £1,468 compensation, making a total of £7,580 with interest.

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