Employment Tribunal holds ‘best fit’ requirement discriminated against older white employee (Mr N Clements v Guy’s and St Thomas’ NHS Foundation Trust – ET2303535/2018)

In the case of Mr N Clements v Guy’s and St Thomas’ NHS Foundation Trust – ET2303535/2018 the Employment Tribunal held that focussing on whether an applicant (an older white male) was the “best fit” for an organisation resulted in the applicant being subjected to age discrimination and sex discrimination.

The facts in Mr N Clements v Guy’s and St Thomas’ NHS Foundation Trust

Mr N Clement’s (the “Claimant) applied for a role within the Health Innovation Network (HIN) forming part of Guy’s and St Thomas’ NHS Foundation Trust (the “Respondent”) as a Band 7 Project Manager (“PM”).  The Claimant suffered from a condition called genetic haemochromatosis which causes iron overloading and is known to cause cancer, heart problems, including cardiomyopathy, joint pain and other chronic symptoms.

On 18 July 2018 the Claimant was shortlisted and invited for interview under the Respondent’s two ticks policy. Four other candidates were also invited for interview including the comparator KM, a female in her mid-twenties.  All five applicants were interviewed on the same day by a panel compiled by the Respondent.

The panel concluded that the best performing of the five candidates were the Claimant and KM. Therefore the final choice was between the Claimant and KM. The Claimant had the highest total score of 81.5 as compared with KM on 80.  Despite the Claimant having the highest score out of the two candidates, the interview panel decided to go through a process of ‘moderation’ to decide who would be the ‘best fit’ for the post within the organisation without reviewing the scores as such. At the end of this process the Claimant still had the highest score. The panel then decided to go through a process of discussion with members of the relevant team known as a ‘sense check’ to see which of the two candidates “were a better fit” within the team.  A number of comments were made by team members which questioned whether the Claimant was too experienced, too senior, how younger staff would be able to manage him as an older person, the fact he was “very different to Dee” (the previous post holder, a women in her twenties) and “nothing like Dee”.

On 19 July 2018 the Claimant was informed he had not been successful in being selected for the post.  He was told that a main factor in the decision was that member of staff that would be responsible for managing him would be  “uncomfortable asking you to do things given you have an 11-year-old daughter”. The Claimant said he had also been told he “had so much more to give compared to other applicants”. The Claimant said that he expressed his disappointment to the news to which CL responded that it was an objective of the accelerator team “to encourage team members to develop their careers” and that given the Claimant’s maturity, it was “better to employ someone at an early stage of their career as they would then progress to develop their career over a longer period elsewhere in the NHS”. The Claimant was also told that other members of the team had been asked to assess each of the candidates.  The Claimant also applied for a separate position later on 19 July 2018, which was a more senior Band 8 project manager position. He  disclosed his disability on his application form and selected the option on the form to be shortlisted for interview, if he met the person specification which was in line with the Respondent’s two tick’s policy.  Unfortunately, the Respondent due to an administrative error failed to mark his application form correctly using the two tick’s policy resulting in his application form not being processed, noting his application as a disabled candidate. On 10 August 2018 he was informed that he was not being called for interview and that his application had been unsuccessful.

On 30 July 2018 the Claimant sent an email to the Respondent’s HR department complaining about what he felt was a discriminatory selection process, his complaint was not upheld.

The Claimant lodged his claim at the Employment Tribunal on 28 September 2018. His claims included claims for: 

1. Direct age discrimination (S.13 Equality Act 2010))
2. Direct sex discrimination (s.13 Equality Act 2010))
3. Failure to make reasonable adjustments (s.21 Equality Act 2010))

The decision of the Employment Tribunal

The Employment Tribunal upheld the Claimant’s claims for direct age discrimination and direct sex discrimination, but rejected the claim for disability discrimination.

Direct age discrimination 

The Employment Tribunal found the Claimant had been subject to direct discrimination which occurred during the interview process where they felt both conscious and unconscious bias had been at play. The Respondent by focusing on finding someone who was the “best fit” were indulging in discriminatory language, seeking to finding someone who was more like them.

The Employment Tribunal noted the team group was predominantly female with an average age of 30-32.  Age discrimination was the reason he was not selected for the Band 7 PM role and thus his claim succeeded.

Sex discrimination

The Employment Tribunal also found in favour of the Claimant for sex discrimination considering again:

• the use of language like “best fit” and the gender make-up of the grouping of people who contributed to the decision;
• the unconventional process used by the Respondent and the fact that the Claimant achieved the highest score; and
• the radical pro feminist views of a team member in influencing the selection decision.   

Disability discrimination

The Employment Tribunal did not uphold this claim. There was no PCP the Employment Tribunal could identify that placed the Claimant at a substantial disadvantage compared with non-disabled persons. They decided that it was factually incorrect the Respondent did not apply their two tick’s policy for the Claimant as a disabled person, rather it was not applied  due to an administrative error.

Our lawyers’ views on the case

Stephen Norton, a lawyer in the employment team at Redmans, commented as follows: “Another useful case where stereotypical assumptions are made about a person based on perceptions of age in terms of value or usefulness within an organisation and the danger of comments where both conscious and unbiased bias come into play. In this case it is interesting that both claims of age and sex discrimination were upheld based on the facts.”

The decision of the Employment Tribunal in Mr N Clements v Guy’s and St Thomas’ NHS Foundation Trust – ET2303535/2018 can be found here.