Case law: Employer who avoided giving true reasons for rejecting job applicant in order to be polite was guilty of age discrimination

Employers interviewing job applicants should keep comprehensive records explaining why they (accept or) reject them, and should not skirt around those reasons when communicating with applicants in an attempt to be polite, a recent legal ruling makes clear.

A law firm only had one applicant for a solicitor’s job, advertised as requiring at least five years’ post-qualification experience. The job was to replace an experienced associate solicitor. The applicant was 57. He had previously been on a high salary but at interview he offered to discuss a salary based on that of the associate he would be replacing or to work as a self-employed contractor. He was told the appointment was a board decision and he would hear from the firm.

He then received an email rejecting his application. The email said the firm was looking for someone with three to five years PQE who it could train to its specific requirements but it would contact him if it had a vacancy for a ‘senior lawyer’ in the future. The firm did not enter into any discussions about salary. The notes made by the interviewer included the words ‘Expensive. Doesn’t cover our needs’.

The applicant claimed direct age discrimination – that, because of his age, he had been treated worse than someone else would be in a similar situation.

The Employment Tribunal upheld his claim. It said that the applicant would have been a suitable replacement for the person whose job he would have been taking over but for the fact the firm considered him ‘expensive’. That was the principal reason for not employing him – had it also been because he did not cover their needs, the firm could have explored how he could cover additional areas of work. The Tribunal said use of the word ‘expensive’ could therefore be taken as shorthand for being more experienced – and older. He had therefore been discriminated against on grounds of his age.

The senior partner at the firm said that the email had been drafted the way it had in order to be polite to the applicant.

Operative date

• 6 April 2020

Recommendation

• Employers interviewing job applicants should keep comprehensive records explaining why they accept or reject them, and should not skirt around those reasons when communicating with applicants in an attempt to be polite.

Case ref: Levy v McHale Legal Limited 2413801/2018