Facts

Mr Clements applied for a role as a Project Manager at Guy’s and St Thomas’ NHS Foundation Trust (the Trust).  He was shortlisted and interviewed along with 4 other candidates, including KM - the comparator in this case and a female in her mid-twenties.  The candidates were also taken to meet other members of the team.  After the interviews, the panel discussed the candidates and concluded that Mr Clements and KM were the top two, with Mr Clements scoring 81.5 and KM scoring 80. They then discussed who was the “best fit”.   This included taking account of views from the team, who had made comments about whether Mr Clements was too experienced and senior, and questioned how the younger managers would manage him.

One of the interviewers told Mr Clements over the phone that he had been unsuccessful in his application.  She said that she was “uncomfortable asking you to do things given you have an 11-year-old daughter”, which the Tribunal took as making the point that she would find it difficult to manage someone who was much older than her.  She also said that it was an objective of the team to encourage team members to develop their careers, and given Mr Clements’ maturity it was “better to employ someone at an early stage of their career as they would then progress to develop their career over a longer period elsewhere in the NHS.”

Decision

The Tribunal found that the burden of proof shifted to the Trust to disprove age discrimination, on the basis of what happened during the interview process.  The Tribunal was concerned that both conscious and unconscious bias were at play, and that the focus on finding a person who was the “best fit” led the Trust to take into account factors which were discriminatory.   

The Tribunal found that the Trust ultimately made their decision based on the opinion of two out of the three interviewers, and this was influenced by discussions with the team members, a group with an average age of 30-32.

This meant it was for the Trust to show that it did not discriminate based on age.  There was little proof that the Trust’s rejection of Mr Clements was not connected to his age, taking into account that he achieved the highest score.  The Tribunal was satisfied that the reason they chose not to select Mr Clements for the role was significantly influenced by his age.  This meant that the claim for direct age discrimination should succeed.

The judgment is available here.

Mr N Clements v Guy’s and St Thomas NHS Foundation Trust (England and Wales: Age Discrimination) [2020] UKET 2303535/2018 (22 December 2020)