Facts

Mr Li applied for a Security Controller role at Vision Security Group Ltd (“VSG”), part of the Mitie Group. At the time, he was 58.

He had worked at JPMorgan for five years in a security role. This was a CCTV oriented position. Mr Li had strong IT skills, two degrees, fluency in multiple languages, experience working as a journalist, and he professed good analytical skills. The role he applied for involved responding to crisis situation as well as some CCTV work.

There were four other candidates for the role. There were a mixture of skills, experience and ages, but Mr Li was the oldest.

• Candidate A, an English man in his early 30s

• Candidate B, a Pakistani man in his mid to late 40s

• Candidate C, a Romanian woman in her early 20s

• Candidate D, a 39 year old man from South Africa

After attending an assessment day, Mr Li’s application was rejected.

He brought claims of age and race discrimination, alleging that the reason he was unsuccessful was because of his age and/or his Chinese ethnicity.

Decision

The Employment Tribunal dismissed Mr Li’s age discrimination claim.

The Employment Tribunal held that the reason Mr Li’s application was unsuccessful was because two other candidates performed better overall than he did.

Mr Li obtained the second highest score in the interviews. He scored highly in some questions where he was able to give specific examples that evidenced his abilities, but received low scores when he was not able to do so.

The candidates were given an intelligence reporting assessment test. Mr Li did well at the questions he answered, but did not attempt to complete a longer essay style question. As a result, he scored nothing in this part of the test.

Mr Li did not perform well in an Excel exercise. Despite his CV claiming he had good spreadsheet skills, Mr Li answered only one of eight problem questions. Due to the analytical nature of the role, strong Excel abilities were regarded as highly important by VSG and were listed as an essential skill. The Excel exercise also sought to test the candidates’ approach problem solving more generally and to identify what they would do if they did not already have the relevant skills.

The Employment Tribunal held that Mr Li’s skills were no more relevant to the position than anyone else’s. Although his language abilities were a “desirable” characteristic, they were not “essential”. His experience with CCTV was helpful, but the role he had applied for was quite different to the role he had done previously. His journalist experience was not relevant.

The Employment Tribunal found that the burden of proof had not shifted in this case. It accepted that VSG had nota appointed MR Li because it believed that other candidates performed better. This decision was nothing to do with age. A requirement that the successful candidate work a shift pattern did not in any way suggest a preference for a younger candidate and, in any event, those involved in the assessment day were not aware of Mr Li’s age.

For similar reasons, the Employment Tribunal also dismissed Mr Li’s claim of race discrimination.

The judgment is available here.

Mr Y Li v Vision Security Group Ltd, 31 July 2019, Employment Tribunal London Central, Case number 2205390/2018