Discrimination findings, based on unconscious bias

A middle-aged father was rejected from an NHS job because he was “very different” to the previous post-holder was a victim of age and sex discrimination, a tribunal has found. The claimant applied for a band 7 project manager role which aimed to speed up the adoption of technology within the NHS in London. The main responsibilities of the role were to develop new IT systems and processes to ease pressure on the NHS.

He was shortlisted for an interview and was the highest-ranking candidate scoring 81.5 out of a possible 105. A younger female candidate was close behind him, scoring 80, and the tribunal said she described herself as a ‘millennial’ and a ‘feminist’ on social media.

The tribunal also heard that the claimant was given the opportunity to meet the team after his interview but wasn’t able to spend prolonged time with them as he had another interview to attend. He was not informed that meeting the team was part of the interview process, but the tribunal found that the comments later submitted by the wider team – which questioned whether he was too experienced, and that he was “nothing like/very different” to the previous post holder who was in her twenties – were included in the candidate score sheets. Despite being the highest-scoring candidate, the tribunal said the evidence appeared to show the panel proceeded to discuss who to select for the role on the basis of who would be the “best fit”.

The claimant said that when he asked for feedback he was told that he wanted to “encourage 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 judge concluded that the trust was guilty of age discrimination. “We were 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,” he said.

This is a lesson for employers, who could put themselves at risk of a discrimination claim if they cannot demonstrate that they have recruited the individual who is the best person for the job, and that assessing candidates on ‘best fit’ could lead to unconscious bias. The trust was ordered to pay £5,000 by way of injury to feelings, together with interest on this sum of £969.86, alongside compensation of £1,468.38, as well as interest on this sum of £141.90 to the claimant.