Age and Sex Discrimination: Man rejected because he wasn’t a ‘Millennial’.

The London South Employment Tribunal awarded Mr. Neil McClements, 50, compensation in an age and sex discrimination claim after been rejected for an NHS job for not appeasing the views of the ‘millennial’ staff that worked there.

The Claimant put forward the following claims against the Respondents, namely Guy’s and St Thomas’ NHS Foundation Trust:

(1)   Direct age discrimination

(2)   Direct sex discrimination

The claims arose from two job applications: one on 28 June 2018 for a Band 7 project manager role; the second on 19 July 2018, again for a project manager role, but at Band 8. The direct age and sex discrimination claims are made in respect of the Claimant's failure to secure the first role.

He was refused the job after potential colleagues – known to support social justice causes, including feminism and gender equality – were consulted. Guy’s and St Thomas’ NHS trust was predominantly female and in their early 30’s, with one doctor taking to social media to describe herself as a ‘millennial’, thus observing the Claimant as ‘nothing like the young woman he would be replacing’.

The legal issues we need to consider in order to establish the claims are as follows:

(1)   Did the Respondent treat the Claimant less favourably than it did treat, or would treat, others?

(2)   Was that less favourable treatment because of the Claimant’s age and/or sex?

Based on the evidence, it was concluded that the aforementioned members of the team had a far greater say in who was selected than any senior management. We find that no firm decision had been made during panel decisions and the final decision was only made after discussions with the team. Discussions included the fact that the Claimant scored the highest throughout the interview. The importance of views provided by the members of the team is also evidenced by the fact that notes, of what members of the team said during their discussions with the panel, are noted on the interview scoring sheets.

Looking to them comments made by team members, it was found that there were a number of comments made which questioned whether the Claimant was too experienced and whether he was too senior. It was also commented that the Claimant was “very different to Dee” (the previous post holder, a woman in her twenties) and “nothing like Dee”.

Direct discrimination is defined under s.13 EQA as follows:

(1)   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.

(2)   If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.

The burden of proof is dealt with under s.136 EQA:

(1)   This section applies to any proceedings relating to a contravention of this Act. Equality Act 2010.

(2)   If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)   But subsection (2) does not apply if A shows that A did not contravene the provision.

This means that there is a two-stage test to proving discrimination. Firstly, it is for the Claimant to prove facts from which the Tribunal could conclude, in the absence of any evidence from the Respondent, that the Respondent committed an act of discrimination. Secondly, only if that burden is discharged would it then be for the Respondent to prove that the reason, they dismissed the Claimant was not because of race.

Accordingly, the burden of proof shifts onto the Respondent only if the Claimant satisfies the Tribunal that there is a ‘prima facie’ case of discrimination. This will usually be based upon inferences of discrimination drawn from the primary facts and circumstances found by the Tribunal to have been proved on the balance of probabilities. Such inferences are crucial in discrimination cases given the unlikelihood of there being direct, overt and decisive evidence that a claimant has been treated less favourably.

The Tribunal found that on the basis of what occurred during the interview process and based on the facts, that the burden of proof shifted to the Respondent in this case to disprove age discrimination. It was concerned that both conscious and unconscious bias were at play and that their focus on finding a person who was the “best fit” led them to take into account factors which were discriminatory.

The Tribunal did not believe the Respondent fully appreciated that the gravity of such actions in going down a path where they would be more inclined to choose a candidate that was more ‘like them’. The decisions ultimately made having been influenced by team members whom were predominantly female and with an average age of 30-32.

The Employment panel ordered the NHS to pay compensation amounting to £7,580.  

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