Facts

David Harber Limited is a small family business which manufactures sundials. It was set up by Mr Harber in the mid 1990s. The business employed Mr Langford as a Sales Director. He was considered a good “fit” and consistently delivered results.

In July 2009, Mr Langford left in order to live in Australia, so the business began recruitment for a replacement Sales Director. It placed an advert in the Guardian and received around 50 responses, one of which was from Mr Frost.

Mr Frost was aged 54. He had a background in HR consultancy and although he had some experience with sales, this was selling professional services. Mrs Harber, who was managing the recruitment of a new Sales Director, initially placed Mr Frost’s CV on the ‘reject’ pile. She felt that his experience was from an unrelated field, that he came from a large rather than small company background, and that he had too much involvement in management as the business was after a “pure” Sales Director.

However, Mr Frost sent a supplementary email and his enthusiasm impressed Mrs Harber. She conducted a telephone interview with Mr Frost and during the conversation asked his age. Mrs Harber said that her reason for this was that the Sales Director would have to carry heavy sundials and so needed to be physically fit.

Mr Frost was invited to another face-to-face interview with Mrs Harber. Mrs Harber used a pro-forma scoring sheet with a list of attributes. She scored the interviewees out of ten for each attribute. One attribute was “age” and during the interview Mrs Harber again asked Mr Frost how old he was. Mr Frost replied that this “has the same legal effect of asking how gay or disabled I am” and did not answer. Mrs Harber gave Mr Frost six out of ten under the “age” criterion.

During the course of the selection process, Mrs Harber considered Mr Frost to be a plausible candidate but potentially too “strong-willed”. Mr Frost had also stressed his other management skills with Mrs Harber, but this had the reverse effect to that he intended as the business wanted someone who would just be responsible for sales.

Mrs Harber eventually rejected Mr Frost, with the reason being that he was “not from a classical sales background and had too much management experience”. Mrs Harber recruited Mr Graham, a 46 year-old.

Mr Frost brought a claim against the business for direct age discrimination. He stated that “I was discriminated on the grounds of my age in that I was not recruited to a role for which I am broadly qualified”.

Decision

The Tribunal upheld his claim.

The Tribunal ruled that Mr Frost had proved facts from which it was able to conclude that the business had, on the grounds of age, treated Mr Frost less favourably than others would have been treated. The “age” attribute used in recruitment meant that younger people scored more highly than older people. The business was not able to prove that it did not treat MR Frost less favourably on the grounds of his age.

In addition, the business’s justification argument – that the reason for applying the marked “age” selection criterion was to ensure that the salesperson could lift 30kg sundials – received short shrift with the Tribunal. The Tribunal commented that there are, self-evidently, more effective ways of measuring someone’s ability to lift a 30kg sundial rather than making an arbitrary assumption based on age.

Having found in favour of Mr Frost, the Tribunal looked at the amount of damages it should award. Mr Frost claimed that he had suffered loss of income because of the age discrimination. The Tribunal ruled that although Mr Frost had suffered age discrimination, it was not this that led to him being unsuccessful for the role and, as such, he should not receive any compensation for loss of income. Mrs Harber’s judgment had been tainted with age discrimination but other factors were ultimately the reason Mr Frost was unsuccessful, such as his perceived inability to fit in with the business’s ethos and his management abilities.

Therefore, the Tribunal awarded Mr Frost compensation for injury to feelings only: £1,000, with  additional interest of £3.53.

The judgment is available here. 

Mr P Frost v David Harber Limited, Reading Employment Tribunal case number 2703446/2009