Facts

Mr Rashid (who was 57) applied for the role of Criminal Investigator in the HMRC Fraud Investigation Service. In order to be successful, a candidate had to succeed at each stage of the process. Mr Rashid passed the numerical and verbal reasoning stage and progressed to the interview stage. Mr Rashid attended the interviews but failed to obtain the minimum scores required to progress. The interviewers met up once they had concluded all the interviews to review their file notes and check that they had been consistent in their allocation of scores to each candidate.

Mr Rashid claimed in his witness statement that he was told (during the interview) that the position needed two years of work to justify the training provided. He said that “it seemed as if the interviewers had doubts given my age as to whether I would be able to work satisfactorily for the required minimum period of the role”. However, in cross examination he admitted it was possible that this was not said. Mr Rashid further complained that there had been evidence of discriminatory behaviour throughout the interview day with him being “unnerved” by security, overly scrutinised by the staff, and that the whole process suffered from a lack of transparency.

He brought a claim to the Employment Tribunal (ET) alleging that he was unsuccessful due to his age (or his race or perceived religion).

Decision

The ET considered whether the burden of proof had shifted i.e. had Mr Rashid presented any facts from which it could conclude that discrimination may have occurred.

Mr Rashid relied on the fact that those who were appointed were all younger, in their 30s and 40s. The ET found that a difference in protected characteristic and a difference in treatment is not enough to shift the burden, there must be “something more”. It found that the interview scoring was fair and Mr Rashid simply did not reach the threshold required for appointment. It noted that the interviewers had received training on equality issues including unconscious bias.  

The ET considered the lack of transparency of the process, but held that any lack of transparency was across the board and was not evidence of any discriminatory behaviour.

Although the ET accepted that Mr Rashid felt unnerved by security, this was nothing to do with his age. This was to do with him feeling ill at ease before an important interview. Moreover, the security staff were not making any decision in relation to his interview performance, so their conduct would be irrelevant in any event.  The behaviour of the staff, demonstrating their curiosity about a candidate, was also deemed to be wholly natural by the ET.

The burden of proof did not shift and the discrimination claims therefore failed.

The full judgment is available here.  

Mr R Rashid v The Commissioners of HM Revenue and Customs: 2411825/2018