Facts

On 21 September 2017, Coedffranc Community Council (“the Council”) placed an advert for a park attendant role. A previous attendant had just retired at the age of 67. The post was advertised as a 6-month fixed term contract, working 37 hours per week in the summer and 20 hours per week in the winter. Mr James, who was also 67, saw the advert and filled in an application form.

A panel, consisting of Mrs Thomas, the Clerk to the Council, and Councillors Wingrave and Davies, was convened to assess thirteen applications. Mrs Thomas made a note of the candidates’ ages at this stage. The same panel then conducted interviews for the four shortlisted candidates which included Mr James.

The panel predominately asked scripted questions, but towards the end of each interview, Councillor Wingrave asked non-scripted questions which focused on answers given by the candidates. A new assessment form was used to rate the answers of the interviewees. However, it was apparent that there was a lack of training on how the new process should work. Whilst Mrs Thomas believed the candidate with the highest score would win, Wingrave and Davies believed that discussions could be had after each interview, where the panel could compare information.

The two strongest candidates were Mr James and the eventual successful candidate, labelled ‘S’, who was 62 years old. Mr James believed the interview was going well until Wingrave began asking questions. After asking how long Mr James had lived in the area she said, “I’ve just noticed how old you are”. Wingrave then asked Mr James, “How’s your health anyway”. On the way home, Mr James claimed that he became increasingly upset at the remarks made during the interview.

There also appeared to be some inconsistency with Wingrave’s evidence. The councillor had said that Mr James was her preferred candidate and that she had scored him the highest, but this was not true according to the assessment forms. It was also evident that Wingrave had handwritten the ages of both Mr James and ‘S’ next to their names on the forms, but not for the other two interviewees.    

Decision

The Tribunal upheld Mr James’ age discrimination claim.

The Tribunal found that comments regarding Mr James’ age were made by Councillor Wingrave. It was also found that Wingrave had deliberately noted the ages of only Mr James and ‘S’, the two older applicants and had circled the age of the successful candidate. It could be inferred that Mr James’ age was a matter taken into account when Wingrave made her decision. This was enforced by the councillor enquiring about the length of time Mr James would be able to undertake the role, given the training required would cost the Council money. Wingrave’s decision was a “game changer” in the decision to appoint ‘S’. This shifted the burden of proof to the Council.

The Tribunal considered whether the Council could prove that the decision was not based on the grounds of age whatsoever. Whilst there was one factor concerning the experience of ‘S’ that may have been influential in the panel’s decision, it was found that it was not enough for the Council to discharge this burden. Compensation was agreed between the parties.

The judgment is available here.

Mr David James v Coedffranc Community Council, 6 October 2018, Case Number: 1600068/2018