Claimant unsuccessful in disability and age discrimination claim in relation to application process for a series of jobs with the respondent. 

The claimant was born in 1962 and he is a senior HR and employment law consultant with over 20 years’ experience. The claimant had a bad accident in 2018 in which he sustained a number of fractures including a fractured spine. On release from hospital the claimant was confined to a wheelchair but after years of physiotherapy he was able to walk short distances. 
The claimant registered with a recruitment agency in July 2023.  A role, as interim HR Manager, came up with the respondent. The claimant was identified by the recruitment firm as a good fit and he was subsequently interviewed. Ms McNicholl led the interview and stated that she was not told that the claimant was disabled. The claimant refuted this stating that he had said he was.

The claimant also stated that there was a discussion about his experience being greater than the role advertised and he may be a better fit for a further role. The respondent disagreed that that had taken place. The second candidate was subsequently interviewed and appointed to the role. The respondent did give advice to MCS Recruitment stating that the claimant was experienced but that his focus seemed to be on promoting his colleague at another business.

An HR Business Partner role came up with the respondent in April 2024. This required membership of the CIPD which the claimant did not have. The Tribunal helpfully outlined that there were various ways in which CIPD qualifications could be obtained and specifically noted Legal Island as providing such courses. As a result, the claimant was informed that he was not successful and would not be progressing.

The claimant applied for a third role with the respondent which was an HR Recruitment Executive. There was a presentation as part of the interview process which the claimant was invited to.

The claimant stated he could not undertake the interview and assessment due to severe depression. The respondent offered an extension to the interview date but the respondent was informed that he would not be able to take part.  The claimant did not raise a complaint in relation to this third recruitment exercise.

The claimant brought claims of disability and age discrimination.  In terms of the disability discrimination it was not found as a matter of fact that the respondent was aware of the claimant’s disability – there had been discussion of the accident but not of the actual nature of the effects that would give actual or constructive knowledge of there being a disability.  The Tribunal further stated that even if there had been knowledge of the claimant’s disability there was still no evidence of less favourable treatment on the basis of disability.   Indeed, the claimant had canvassed for another during the interview process and that was part of the reason he was not successful. For the second role applied for, the reason for not being shortlisted was directly related to the lack of CIPD membership rather than it linking to disability.

On age discrimination, the Tribunal found that the claimant had not established facts which demonstrated that the respondent had treated him less favourably on the grounds of his age. The reasons for the claimant not being successful were based upon him canvassing for another for the role and that it was believed that the claimant had secured another job.

The Tribunal also noted that the claim relating to the first process was out of time and found that time should not be extended.  As an aside to the judgment, the Tribunal noted that there were no proper records retained in relation to the interview processes and this was not in keeping with the organisation’s policy or the expectation considering it had a large HR department.  This is an important learning point which should be considered.

Whilst the interviews were noted as being more like informal conversations, it is important that the policy and process of the employer is followed.  The lack of written notes from the interview process undertaken did lead to a comment from the Tribunal.  Whilst it was not determinative of the case, and the respondent was still able to successfully defend its position in terms of the hiring decisions – a lot of this could have been avoided by ensuring that there was proper recording keeping.

NI Tribunal decisions are available on the OITFET website.