Employment Tribunal upholds job applicants claim for discrimination after comments made about his age during interview (James v Coedffranc Community Council: 1600068/2018)

In Mr David James v Coedffranc Community Council: 1600068/2018 the Employment Tribunal concluded that an applicant for employment had been directly discriminated against because of his age when the prospective employer refused to employ him because of his age.

Factual background in James v Coedffranc Community Council

The claimant, Mr David James, was 67 years of age at the date of interview for a post of park attendant with the respondent council, Coedffranc Community Council. The previous park attendant had just retired from his previous job at the age of 67.

The successful candidate “S” was 62 years of age at the date of the interview.

The application form used included a space for candidates to fill in their date of birth. The panel that undertook the shortlisting process was the same panel that subsequently undertook the interviews; Councillor Wingrave, Councillor Davies Ms Wendy Thomas (Clerk to the council). Ms Thomas had made a note of candidates’ ages at the shortlisting stage. The applicants that were not shortlisted were younger than the claimant.  Following the shortlisting, two candidates were much stronger overall, the claimant and S. An assessment form was used during the interview which was based on a rating key; for each question the candidate could receive up to 4 marks for their answer from each panel member.

The claimant’s evidence was that he thought his interview was going well right up until Councillor Wingrave said “I’ve just noticed how old you are”. He was then asked whether he intended to only stay in the job for a year or so. Counsellor Wingrave then enquired “How’s your health anyway”.

Following the interviews, the three panel members compared the information and each score individually. When totaling the scores, errors were made.  If the marks had been correctly added up, the claimant would have scored 128 and S 126.  As it was on the day, when the panel’s marks were combined, the claimant had 128 and S was on 130.

On Councillor Wingrave’s scoring sheet for the claimant, there was a handwritten ‘67’ by his name and on S’s sheet, ‘62’ that had been circled.

The law on age discrimination

The Tribunal considered section 13 Equality Act 2010, subsection 1, which provides:

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

The protected characteristic relied upon by the claimant is age. In relation to age discrimination, section 5 EqA provides: “Age  (1) In relation to the protected characteristic of age —  (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;  (b) a reference to persons who share a protected characteristic is a reference to persons of the same age group (2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.”

The Tribunal considered whether the treatment of the claimant was “because of” the protected characteristic. The Equality Human Rights Commission Code of Practice states that: “Whilst a protected characteristic needs to be a cause of the less favourable treatment, it does not need to be the only or even the main cause.”

Conclusion and decision of the Employment Tribunal

The Employment Tribunal held that the decision made by the respondent not to provide the position of parking attendant to the claimant was direct age discrimination. The Employment Tribunal reached an inference that the Council’s conduct was discriminatory based on the following conduct:

• Councillor Wingrave’s comments regarding age;
• The note taking of the ages of the claimant and S by Councillor Wingrave;
• The circling of the age of the successful candidate S by Councillor Wingrave; and
• The fact that Councillor Wingrave’s decision was a ‘game changer’ with regards to whether the claimant would be awarded the position (the other two councillors had scored the claimant the best marks)

Our lawyers’ comments on James v Coedffranc Community Council

Melissa Chin, a Legal Executive in the employment team at Redmans, commented on the case: “Employers should ensure that they treat all applicants for employment fairly and equally, irrespective of any protected characteristic that an applicant may make – if an employer fails to do so, as in this case, they may find themselves the subject of potentially costly and embarrassing Employment Tribunal proceedings.”

The decision of the Employment Tribunal in James v Coedffranc Community Council can be found here.