There was no direct age discrimination in a local authority’s decision not to promote a 60-year-old employee to a project manager role after interview, despite her having better qualifications and more experience than the successful candidate.

Facts

Dr Hubbard accepted an invitation to form part of an interview panel for a role as project manager with Rotherham Metropolitan Borough Council (“RMBC”). She became interested in the role herself and made a very late application on the closing date of 14 January 2018. 

Dr Hubbard was informed the day after her interview in February 2018 that her application was unsuccessful. In early March, she sent an email to the interviewer with questions about the interview process. She requested feedback on why she was not appointed, including questions about age and gender. Separately, a week after that email, RMBC sent a request to Dr Hubbard to attend a meeting to discuss her probation.

The probation meeting identified serious concerns about Dr Hubbard’s performance: poor communication, management with colleagues, lack of diligence and attention to detail, lack of judgment and failure to take responsibility of her work.

In April 2018, once Dr Hubbard had discovered the successful candidate’s age, she sent a letter to RMBC’s CEO asking specific questions regarding age and her failure to have been appointed as project manager. RMBC considered that this letter and the email Dr Hubbard had sent in March were merely to deflect from criticisms about her conduct. Further meetings resulted in Dr Hubbard being informed that her employment would be terminated on performance grounds.

Dr Hubbard claimed that her failure to progress during the recruitment process for the project manager role was direct age discrimination, because of the fact that the successful candidate was 30 years old whereas she was 60 years old.

Decision

The Employment Tribunal (“ET”) dismissed Dr Hubbard’s claim. It found it difficult to choose between the conflicting evidence, but considered that the evidence on behalf of RMBC was more convincing than Dr Hubbard’s, who “gave us cause to consider that [she] was not being entirely straightforward with us”. The ET accepted that Dr Hubbard had conducted herself in a disrespectful and challenging manner with her manager.

In terms of the promotion, the ET noted that Dr Hubbard was the oldest of the four candidates who were interviewed and, compared to the successful candidate, had more experience, better academics and greater professional qualifications. The ET did not, however, consider that this disparity was sufficient to shift the burden of proof. Regardless of qualifications, if the candidates met the base level required to get through to interview, all started equal on the day of the interview: success was therefore entirely dependent on how they performed on the day. In the event, Dr Hubbard had been ranked third, with the fourth candidate being younger than her.

The ET also rejected Dr Hubbard’s contention that there was a general bias against older members of staff. It found no evidence to support this claim, and rejected an argument that an inference of bias towards young people should be drawn from management’s keenness to appoint more apprentices within RMBC. This was also underlined by the fact that Dr Hubbard could not explain why, if management was so biased towards age, she was permitted through to the final interview stage. The ET accordingly rejected the claim.

The judgment is available here

Dr J Hubbard v Rotherham Metropolitan Borough Council 1805581/2018

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