Making age-related assumptions about a job candidate lands another employer in trouble

A recent case provides some useful learning points for employers in terms of avoiding making age-related assumptions about someone's suitability for a job when shortlisting candidates. 

Facts

The employer advertised for a brand asset designer. It was part of the government's Disability Confident Scheme and advised applicants that it would interview anyone with a disability provided they met the minimum requirements for the role.

Mr C applied. He declared that he had a number of disabilities but was not invited to an interview and received a standard rejection letter.

He asked the organisation to explain why they hadn't interviewed him as he believed that he met the essential criteria. It transpired that the person who had undertaken the initial sift of job applicants had sent his application to the hiring managers but, due to an error, they hadn't received it. 

The employer explained that they could not offer Mr C an interview for the role as it had been filled. They apologised and encouraged him to apply again for other suitable opportunities.  

It then decided to retrospectively consider if Mr C's application did, in fact, meet the 10 essential criteria laid down for the job. It flagged issues related to most of the key skills required and, accordingly, concluded that he wouldn't have been eligible to be interviewed under the Disability Confident Scheme.

 Mr C made a data subject access request and obtained a copy of this report. He found the comments ‘disrespectful, humiliating … and deeply damaging’; he suggested that the author had a ‘bigoted opinion’ and raised a grievance, alleging that his age (58) played a part in the organisation's decision making. It responded by saying that that a third of its workforce were over the age of 55 years old and denied discrimination.  

Mr C brought a number of claims against the organisation, including an allegation that he had been harassed because of his disabilities and age.

Tribunal decision

By the time the case came before the tribunal, Mr C had withdrew allegations that failing to interview him was an act of discrimination. It was an error that had nothing to do with his age or disability and, as the tribunal put it, reflected ‘very badly’ on the organisation but it was 'not a discriminatory failing.'

The issue the tribunal had to focus on was limited to the way Mr C had been treated after he had been told that he had not been successful. Did that amount to harassment? 

One of the key skills required candidates to show ‘exceptional creative layout and typographical ability’. The reviewer concluded that the standard displayed by Mr C was ‘not reflective of 40 years’ experience'. However, the job specification did not require candidates to provide examples of their work which matched a particular level of experience. The tribunal concluded that by imposing a level of competency to match a perceived level of experience, the organisation imposed a higher ‘must have’ on the role than was required. The tribunal said that this 'would not have been said of a candidate with five years' experience' and was directly related to Mr C's age.

The review's conclusions amounted to unwanted conduct that Mr C found intimidating, hostile, degrading, humiliating or offensive and amounted to age-related harassment. 

Mr C could only recover compensation for injury to his feelings. He received £4,000.00 plus interest of £316.50 which is towards the lower end of the lower Vento band (suitable for one-off and isolated incidents which are considered to be less serious). He could not recover any financial losses because the harassment occurred after he had been rejected for the role.  

Lessons for other employers

Mistakes happen. Had the organisation apologised for their error and put in place systems to ensure that applications didn't get lost in the system, that would have been an end to the matter, and they would have been able to defeat any discrimination claim Mr C issued. 

The problem stemmed from the review they decided to undertake. There was no need to do this - they had already appointed a candidate and there was no job open for Mr C. But they were embarrassed by what had happened and had embarked on what the tribunal described as a ‘self-serving exercise of shutting the stable door after the horse had bolted’. 

The tribunal concluded that the person who undertook the review approached it from the perspective of knowing how useful it would be to find that Mr C didn't meet the essential criteria and setting out to achieve just that. 'She did not do it because of the claimant’s age or disability, she did it because it would be a neat solution to an awkward problem arising out of the failure to consider [his] application …'.

So, the simple message for other employers is sometimes it's better to ‘fess up’, say sorry and learn from your mistakes. Trying to justify your actions after the fact can get you into hot water. 

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