Many employers understandably prefer an informal atmosphere when interviewing job candidates. However, as an Employment Tribunal (ET) ruling showed, there is always a risk that such an approach may leave room for bias or discrimination to creep unintentionally into the selection process (Clements v Guy's and St Thomas's NHS Foundation Trust).

The case concerned a man of mature years who applied to an NHS trust for a post as a project manager. The five candidates were encouraged to make original, fun yet thoughtful and punchy presentations. In response, the man employed visual aids during his interview, including a backpack given to him by his daughter which featured characters from a popular cartoon film, known as Minions.

The three-member panel asked him whether he was willing to 'be a Minion' by rolling up his sleeves and mucking in. He took it that the panel was asking him whether he was willing to do mundane tasks or to be a servile follower or subordinate of a person in power. In the event, the panel scored him more highly than the other candidates.

The selection process then took a more unconventional course when he was invited to meet members of his prospective team while they had lunch. He was unable to stay long, however, because he had another interview booked. The views of team members were canvassed and informal discussions took place that focused on which candidate would be the 'best fit' for the team.

The male panel member who had scored the man most favourably had departed by the time the decision was taken to appoint a woman in her 20s who was the next highest scoring candidate. After he was informed of the decision, the man lodged complaints of direct sex and age discrimination with an ET.

Upholding both those claims, the ET noted that team members had commented that he was very different from the previous holder of the post, a woman in her 20s. They questioned whether he was too senior or too experienced for the role. He said that the person who informed him of his rejection had commented that it was better to employ someone at an early stage of their career.

The ET expressed concern that both conscious and unconscious bias were in play during the selection process. The interviewers' focus on which candidate would be the 'best fit' may have rendered them inclined to choose the candidate most like themselves. The decision to reject the man's candidacy was ultimately taken by two panel members, both of them women.

The weight of evidence presented by the man was sufficient to shift the burden of proof onto the NHS trust. It was thus required to establish that the decision to reject him was in no way infected by sex or age discrimination. The ET found that it had in both respects failed to discharge that burden. The amount of the man's compensation would be decided at a further hearing, if not agreed.

For expert advice on all matters regarding employment law and discrimination, contact Sam Glynn s.glynn@sydneymitchell.co.uk 08081668860.

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