The tribunal found that Alex Cubbin had been harassed for reasons related to his age and awarded him £4,000 compensation.
What happened?
Mr Cubbin applied for the Brand Asset Designer role with Age UK. He mentioned his age (58) his experience (40 years) and also his positive assessment for dyslexia, his depression and severe anxiety and a combined diagnosis of both OCD and ASD.
Within Age UK’s Recruitment and Selection Policy and Procedure, there was a section that read: ‘Please be aware that we are members of the Government’s Disability Confident Scheme. As part of our commitment, we guarantee an interview for any applicant who declares that they have a disability if they meet our minimum requirements for the role.’
This was reiterated on Age UK’s online applications portal.
298 people applied for the role, 26 of which applied under the DCS. Six candidates were shortlisted for interview, and they were contacted. Mr Cubbin was not amongst them.
Age UK emailed him to reject his application, using the following wording:
‘After careful consideration, we will not be taking your application further on this occasion. We have the following feedback from the hiring manager for you. Thank you for your application. We were overwhelmed with the response for the role. The general standard of applications has been extremely high and we’ve shortlisted candidates whose skill sets are more closely matched to the role requirements.’
This was a generic email sent to those not selected for interview but was nevertheless factually misleading. Mr Cubbin replied, pointing out the Disability Confident Scheme for disabled candidates and asked for a copy of Age UK’s complaints procedure.
Age UK realised that his CV had gone astray in their internal system due to what was described as a “technical mishap”. This was at odds with the rejection letter, which said that his application had been subject to “careful consideration”.
Age UK wrote to Mr Cubbin to explain what had happened, citing “an unknown technical issue”. In his response, Mr Cubbin said he disputed the claim that he did not meet the minimum ‘must haves’ for the role and complained that the hiring process had discriminated against him.
The Senior Brand Identity Manager was asked to carry out a retrospective review of his application to see whether he would have met the application’s ‘must haves’ for an interview under the DCS scheme, if his application had not been mislaid. The results were emailed to Age UK’s recruitment manager. Mr Cubbin did not get a copy, although he later made a Subject Access Request and a copy was sent to him.
The tribunal summed up Age UK’s approach thus:
“…the Respondent was embarrassed by its failure to consider the Claimant’s application or determine whether it met the ‘must haves’ for the role. Had the review concluded that the Claimant did meet the requirements, the embarrassment and fallout would have been much worse. There was no actual need for a review. The Respondent could simply have apologised for the mistake but…following the appointment of the successful candidate, there was nothing further that it could do.
“Instead the Respondent embarked on a self-serving exercise of shutting the stable door after the horse had bolted…[the Senior Brand Identity Manager] undertook that exercise well aware that a conclusion that the Claimant met the minimum criteria for the role would have been embarrassing and awkward, and was therefore something that could very conveniently be avoided if the review concluded that the Claimant would not have met the essential criteria for the role.”
The tribunal acknowledged that Mr Cubbin would have found the evaluation to be deeply upsetting, but a claim for age or disability discrimination would have been rejected since the tribunal had already found that his non-selection for interview wasn’t to do with his age or disability status, but an internal IT error.
Mr Cubbin, however, had also included in his claim, allegations of harassment and here the tribunal took a different view.
“Whilst a review was wanted by the Claimant (as a means of progressing his complaint) a negative review was unwanted, and as such we find that the review’s conclusions amounted to unwanted conduct.”
But was that unwanted conduct was related to Mr Cubbin’s age or disability?
The tribunal dismissed all but one particular claim, and of that claim, the tribunal said
“…this self-serving conclusion did tip the balance into age-related harassment of the Claimant. [It was] stated that ‘the standard of his layout and typographical skills are not reflective of 40 years’ experience. With his experience in mind, I would expect a wealth of examples which explore numerous design solutions for a multitude of clients’. We note that the ‘must haves’ for the role made no reference…to examples given by a candidate matching a particular level of experience. In imposing a level of competency to match a perceived level of experience Ms King was imposing a higher ‘must have’ on the Claimant than was required for the role. She was also concluding that a less experienced (or younger) candidate had to produce less than a more experienced (or older) candidate to progress to interview. This imposition of a higher standard was driven, we conclude, because Ms King wanted to support the Respondent in extracting itself from the mess it had got itself into by failing to consider the Claimant’s application at all…when the Claimant read this statement that he found it to be ‘intimidating, hostile, degrading, humiliating or offensive’.”
That led them to the conclusion that Age UK had harassed Mr Cubbin for reasons related to his age.
No award was made for loss of earnings but a sum of £4,316,50 was made for injury to feelings
Legal commentary:
What is age discrimination?
Age is what is known as a protected characteristic under the Equality Act 2010. Age discrimination occurs when someone is discriminated against for reasons relating to age which cannot be objectively justified.
Some examples of this could be a young person being overlooked for a certain job role, or being paid a low rate of pay because they are young. An older person may be denied opportunities for jobs or refused work on the basis that the employer makes assumptions about their future plans (i.e. retirement or they won’t be able to keep up the demands and pace of work).
What is age-related harassment?
Age-related harassment is subjecting an individual to unwanted conduct related to age (or the perception of an individual’s age) which has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
An example of this is demonstrated in the case above, relating to the level of the candidate’s typographical skills which did not match the candidate’s level of experience (40 years). However, this was not a “must have” for the role and therefore amounted to an act of age-related harassment.
How employers can avoid this in the hiring process
Tips for avoiding age discrimination in recruitment practices:
- The wording of job adverts plays a critical role in avoiding any potential age discrimination. Take care to avoid any wording or pictures which direct the job advert towards a particular age group (i.e. avoid usage of X amount number of years’ experience in a particular area).
- Use scoring criteria in the interview process to focus more on skills, qualifications and relevant experience that the candidate possesses rather than age-related assumptions.
- Ensure age-inclusive language is adopted in inclusion and diversity policies and provide regular and meaningful training to all staff.
- Advertise roles in different recruitment spaces to make accessible to a wider audience.
- Operate ‘blind recruitment’ practices where details are anonymised from applications (i.e. removing age-related identifiers from applications can help to mitigate unconscious bias during the initial selection process).
- Avoid any direct questions relating to age in the interview process (i.e. asking plans on retirement or questions relating to specific age-identifiers.)