The claimant, a 50-year-old man, applied for a role within the respondent trust as a Band 7 Project Manager.   It was aligned to a scheme known as the ‘Digital Health London Accelerator’ which sought to speed up the adoption of technology within the NHS in London.  Part of the job would thus require the successful candidate to liaise with 20-30 start-up companies and support their development to put in new IT systems to ease the pressures faced by the NHS.  The claimant, due to a disability, applied under the guaranteed interview scheme.  As he had met the minimum criteria he was thus invited to interview.  This is where the issue arose and for the purpose of the discrimination claim the comparator was another applicant a woman in her twenties.

In terms of the performance at interview, it involved a scoring exercise by the three panel members.  They had scored the claimant at 81.5 yet the comparator, who received the job, received a score of 80.   The respondent then discussed which individual would be the ‘best fit’ for the job.   It was not clear what was scientific about the process.  There was a comparison made to the previous holder to the job and that the claimant was nothing like her who was a woman in her twenties.   It was interesting that the Tribunal went into the twitter accounts of the interviewees who had described themselves as feminists and millennials.  The nature of some of the tweets was outlined in the Tribunal judgment which was bound to cause some embarrassment to those members.  Following the decision there was a call between the claimant and one of the interviewers when they stated that they would be uncomfortable asking him to do things considering that he has a daughter and that it was better to employ someone at an early stage of their career and they could develop.

The Tribunal held that there had been direct age discrimination.  When the burden shifted to the respondent, there was no scientific or objective proof that the rejection of the claimant was not connected with his age.   The reason to choose the other candidate was significantly influenced by age.  The same was also seen with sex discrimination and the views that had been tweeted by the interview panels and others in the decision making went to the fact that there had been a position in favour of female candidates.  The claimant was awarded around £7,500 for injury to feelings and compensation.

Practical Lessons

This case demonstrates the importance of running a recruitment process in a non-discriminatory way.  An interesting point from the case is the extent to which the Tribunal looked at the interviewers/decision makers and their social media use.  The tweets were taken as evidence that they would prefer a female candidate compared to a male candidate.  This instantly puts the respondent on the back-foot and with no objective reason why the comparator candidate was chosen it allowed the claimant to succeed.  Therefore, employers should be cognisant of informing employees of their social media used and how it can be construed.
https://www.gov.uk/employment-tribunal-decisions/mr-n-clements-v-guy-s-and-st-thomas-nhs-foundation-trust-2303535-2018