Unconscious bias – sex and age discrimination

In Clements v Guy’s and St Thomas’ NHS Foundation Trust, an employment tribunal awarded £7,600 in a claim of sex and age discrimination.

Mr Clements, a 48 year-old man, had applied for a project manager role with the trust and was shortlisted for interview, along with four other candidates. Despite being the highest scoring candidate, he was not successful and he claimed direct age and sex discrimination.

The tribunal considered the following legal questions:

• Did the trust treat Mr Clements less favourably than it did treat, or would treat, others? In this case, there was a direct comparator, who was the successful candidate (female).
• Was that less favourable treatment because of Mr Clement’s age and/or sex?

Following the interview by three panel members, the candidates were taken to meet other members of the team they would be working in. The tribunal found that there was no consistency in terms of who met who. Therefore, there were people who met the successful candidate (the comparator), who did not meet Mr Clements. Mr Clements finished his interview at 12.15 and was taken to meet other members of the team, who were eating lunch at the time. Mr Clements felt that they were more concerned with eating lunch. Witnesses for the trust said that Mr Clements was disinterested in meeting the team. However, the tribunal decided that Mr Clements was not disinterested, rather he had another interview arranged at 1.00 and, therefore, did not have long to talk. In addition, Mr Clements was not told that these informal meetings played any part in the selection process and was not told that the employees he met informally would be providing feedback to the interview panel.

Out of the five candidates, Mr Clements and the successful candidate were the best performing, with Mr Clements scoring the highest. The panel then discussed who to select on the basis to be the ‘best fit’. One of the panel members left before the end of the discussions. The remaining two panel members were unable to make a decision, so decided to speak with the team.

Based on the evidence, the tribunal concluded that members of the team had a far greater say in who was selected than was suggested in the evidence they gave during the hearing. Notes of what the team said were written on the interview score sheet and the final decision as to who to appoint was made after discussions with the team. Comments the team made included whether Mr Clements was too experienced, too senior and that he was ‘very different to Dee’ (the previous post holder, who was a woman in her 20s).

The panel member who made the call to Mr Clements told him that the main factor in the decision not to appoint him was that she would be ‘uncomfortable asking you to do things given you have an 11 year-old daughter’. She also told him that, given his 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 considered the legal principles regarding direct discrimination:

• Mr Clements had to prove facts from which the tribunal could conclude that the trust committed an act of discrimination.
• The burden then shifts to the trust to prove that they have not been discriminatory.

The tribunal concluded that on the basis of what occurred during the interview process, the burden of proof shifted to the trust to disprove age discrimination. The tribunal felt that both conscious and unconscious bias were evident. They were satisfied that the reason two of the panel members did not choose Mr Clements was significantly influenced by his age.

With regards to the claim of sex discrimination, they found sufficient evidence to shift the burden of proof, particularly given the panel stated they wanted to find the ‘best fit’.

Summary

Employers should be open about the use of informal feedback, so that candidates are aware that it will form part of the selection process. In addition, employers need to ensure consistency, so that all candidates meet the same team members and for the same scheduled length of time.

Employers should also be mindful of bias, both conscious and unconscious. This applies to all areas of bias and can have wide application such as accent bias. For example, a survey carried out by Queen Mary University of London found that people from Birmingham and Liverpool suffer the most judgement regarding their accents, together with people who have Indian or Afro-Caribbean accents.