Father turned down for job for not being ‘best fit’ with female colleagues was discriminated against, tribunal finds

Judge rules NHS trust had not appreciated the dangers of prioritising fit, as experts warn choosing recruits on this basis can lead to 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 London South Employment Tribunal found that Guy’s and St Thomas’ NHS Foundation Trust discriminated against Mr N Clements based on his age and sex during his interview process, as they concluded he would not be the “best fit” in a team of younger females despite being the highest ranked candidate.

Further claims of failing to make reasonable adjustments were dismissed.

In June 2018, Clements applied for the band 7 project manager role at the trust, within a scheme known as ‘digital health London accelerator’, 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 on 18 July 2018 by a panel including his would-be manager Dr Charlotte Lee, as well as two others referred to by the tribunal as JT and PW. The tribunal heard that Lee, who had recently started working at the trust, and had not been involved in interviewing before, nor had she received interview training.

The tribunal found that after the initial interviews, Clements was the highest-ranking candidate scoring 81.5 out of a possible 105. A younger female candidate, known as KM, was close behind him, scoring 80, and the tribunal said she described herself as a ‘millennial’ and a ‘feminist’ on social media.

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The tribunal also heard that Clements 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, how Lee would manage him 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 and “played a more important role in the process than had been suggested by [the trust]”.

Despite Clements 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 trust argued that this was a process of “moderation” but the tribunal said there was “little that was scientific about the process”, adding that the panel did not go back to the scores and discuss whether they needed adjusting.

Following the ‘moderation’ process, Clements still had the highest score. No firm decision had been made during panel discussions and the final decision to hire candidate KM was made following discussions with the team. PW, the panel member who gave Clements the highest score, was not present for these decisions. The tribunal concluded the evidence suggested “members of the team had a far greater say in who was selected than was suggested in their evidence during the hearing”.

Lee called Clements on 19 July 2018 to relay the decision. Both parties disputed what was said during the 17-minute phone call in the tribunal, but Clements claimed the main factor in Lee’s decision to not employ him was that she was “uncomfortable” asking him to do things “given you have an 11-year-old daughter”.

He also claimed Lee said the objective of the accelerator scheme was to “encourage members to develop their careers” and that, given Clements’ 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 tribunal accepted Clements’ version of events as they were largely consistent with his initial complaint.

The tribunal concluded that Lee was making a point that she would find it “difficult to manage someone who was much older than her”, and the reference to his daughter “was to illustrate the maturity point”.

Judge Hyams-Parish concluded that the trust was guilty of age discrimination towards Clements. “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.

Hyams-Parish added that the decision was influenced by team members who were “predominantly female with an average age of 30-32”, and the trust had not “fully appreciated that the danger in going down that path [of finding the ‘best fit’] was that they would be more inclined to choose a candidate that was more like them”.

The tribunal also concluded that, while the evidence for sex discrimination was “not quite as overt as that relating to age”, the focus on trying to find the ‘best fit’ when viewed against “the gender make-up of the grouping of people who contributed to the decision” and the “unconventional process” adopted by the trust, the tribunal was not convinced that their decision to reject Clements in favour of KM “was in no sense whatsoever because of his sex”.

Andrew Willis, head of legal at Croner, warned that employers could put themselves at risk of a discrimination claim if they weren’t able to demonstrate they recruited the individual who was the best person for the job, and that assessing candidates on ‘best fit’ could lead to unconscious bias.

“The tribunal was concerned, with this case, that recruitment had been done on the basis of the best fit,” Willis explained. “This can, the tribunal noted, bring unconscious bias into play where people make discriminatory decisions without being aware that they are doing so.

“That’s the problem with unconscious bias – you don’t know you’re doing it. Unfortunately for employers, this is no defence to a discrimination claim”.

A spokesperson for the Health Innovation Network, which is part of Guy’s and St Thomas’, said: “We’d like to apologise again to Mr Clements. The tribunal remedy hearing in December 2020 stated that while there were flaws in this specific recruitment process, those involved were not malicious or intentionally discriminatory.”

They added that, as a result of the ruling, the trust had “updated our recruitment process and training, including representative interview panels and unconscious bias training”.

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 Clements.