What can I Learn from an Ageism Case?

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The number of ageism cases coming to Employment Tribunals has been steadily rising. I recently looked at the case report to understand what kinds of things are going on when ageism becomes part of court litigation. But before we go into that, let's understand what happens at an Employment Tribunal.

What is an Employment Tribunal

In principle, an employment tribunal should be a relatively informal legal process for resolving disputes between employers and employees in the context of employment legislation. In addition to dealing with unfair dismissal or contract issues, they also deal with discrimination for protected characteristics. This case interested me because there were three discrimination claims for three protected characteristics. Although every case is different, some things came out of this that I think could encourage others to consider, such as whether there is direct age discrimination in how their current or potential employer treats them.

The Background to the Case

Let's just give you some context. This was a dispute between somebody already working in the NHS and someone who had applied for a promotion to a new role. The report is in the public domain, and I will be referring to some of the names just because it's helpful to make this concrete.

The claimant, in this particular case, was Mr. N Clements. He complained that he'd been discriminated against when applying for a job. An opportunity for a new job had arisen with his existing employer. He claimed that he'd been discriminated against based on being too old, for being a man and for a long-term health condition (disability) for which the employer had failed to make reasonable adjustments. The claim based on disability failed, and I don't think it would be useful to spend any time exploring it. However, the issue of direct age discrimination was seen as well-founded and succeeded. The issue of direct sex discrimination also succeeds.

The Facts

Why did Mr. Clements win? This employer had run a formal recruitment process for the job. During the interviews, the candidates were scored on several different criteria, and the scores were recorded. It was clear that Mr. Clements had outscored a younger woman who was then appointed. However, the real killer issue that persuaded the Tribunal that discrimination had happened was that, alongside the formal interview process, each candidate was invited to meet work team members in an informal social setting over lunch. These team members commented that they shared their concern about having somebody working for them who was older. They wanted to discriminate on the grounds of 'cultural fit'. The Tribunal judged that 'cultural fit' was applied with bias concerning his age and gender. The team he would have been working with were all women, and they expressed concern about how that would work. The team he would be working with were younger than him. They were worried about how he would respond to management by a younger person. The existing team explicitly shared these concerns with some of the people on the interview panel. The Tribunal could see a clear comparator who had been interviewed, was a woman, and was substantially younger in her mid-twenties.

As part of the interview process, candidates were required to deliver a presentation, and points were awarded for original, fun, yet thoughtful, and punchy presentations. During the interview, the panel sought to establish the claimant's willingness to work with others younger than him and perform more menial tasks. The Tribunal judged that this was discrimination based on age. Mr Clement's scores were higher than the comparative woman's. The panel claimed that the conversation they had with the wider team after the informal lunch was a process of moderation. But the Tribunal noted nothing scientific about the process, 'you didn't go back to scores and discuss whether scores were correct or not'. At the end of the process, the claimant still had the highest score. The employer said that the informal meetings were a sense check. The Tribunal clearly states that the comments from the informal meetings played a much more important part in the process than the employer claims. Team members questioned whether he was too experienced, whether he was too senior, and how the younger people would manage. They also talked about how he's very different from the previous postholder, who is in her twenties and nothing like her. There was evidence from the Twitter account of one of the team members, who identifies herself as a campaigner on social justice and inequality and a feminist. This constituted evidence that this team member was prejudiced against a male candidate.

What the Tribunal Concluded

The employer told the claimant that he was unsuccessful. The main factor in the decision was that management is uncomfortable asking you to do things, given that you have an 11-year-old daughter. However, the employer recognised that the claimant had much more to give than other candidates. The employer also said, given the candidate's maturity, it was best to employ someone at an earlier stage of their career as they then progress to develop a career over a longer period elsewhere in the NHS. The employer had indicated that age was a consideration.

At the end of the process, the Tribunals stated,

'We are in no doubt, based on what occurred during the interview process, and based on our findings of fact, that both conscious and unconscious bias was at play and the focus on finding a person who was the 'best fit', let them take into discriminatory account factors. We find that the decision was ultimately made, having been influenced by team members, and this grouping is predominantly female, with an average age of 30 to 32. We are satisfied that the reason that the candidate was not chosen was significantly influenced by his age.'

'Similarly, on the grounds of sex discrimination, particularly given the concentration on finding the 'best fit', when viewed against the gender makeup of the grouping of people who contribute to the decision, the unconventional process adopted by the employer, and the fact that claimant achieved the highest scores and the views repeated by one of the team members, we are clear the decision to reject the claimant in favor of the successful candidate was because of his sex.'

Ageism Lessons for Older People

The Tribunal were in no doubt that ageism occurred. Older people should stop pretending that ageism will never happen to them.

The Tribunal recognised that unconscious bias could play a part in ageism. It could be working against you, too.

I hope this case will encourage others to pursue age discrimination cases through formal internal procedures and, if necessary, the Employment Tribunal.