The best things in life are free – the second best are very expensive: employment law considerations in recruitment
A recent case from an employment tribunal in the UK acts as a reminder to employers that the scope of many protections in employment legislation extends to the recruitment process.
Authors: Cian Beecher, Ciara McDermott and Niamh Fennelly.
Mr Levy, a senior solicitor, was denied a job at McHale Legal, despite being the only person interviewed for the role. The tribunal heard that McHale Legal changed the job description to suit a more junior solicitor after it deemed Mr Levy unsuitable. Internal meeting notes were produced at the tribunal, which stated: “Expensive. Doesn’t cover all our needs.” The tribunal ruled that Mr Levy had been discriminated against on the ground of age as “expensive” was “synonymous with his being an experienced and older solicitor”.
Mr Levy was admitted as a solicitor in 1985 and specialised in commercial property law. He had worked at a number of firms in London and elsewhere before being made redundant in early 2018. In response to an advert, Mr Levy called Ms Udalova-Surkova, a senior solicitor specialising in commercial property law at McHale Legal. The position advertised was for a solicitor with five years’ post-qualification experience (“PQE”). During their call, Mr Levy was told there was a “fairly urgent” need to fill the role. They agreed Mr Levy would send his CV to the firm and they would meet for an interview two days later.
During the interview on 7 March, Ms Udalova-Surkova explained the firm’s need to replace a senior associate within its commercial property team as the work was “piling up”. Mr Levy was available for an immediate start and suggested that the pay of the departing solicitor could form a starting point for salary discussions. The tribunal heard evidence that the departing solicitor’s salary was £42,000, but Mr Levy incorrectly made note that this salary was £45,000. He asked for a sum of “around £50,000” for the first three months and offered to work on a self-employed consultancy basis thereafter. Ms Udalova-Surkova suggested a start date of “next Monday”, meaning 12 March, but explained the decision was subject to management approval.
A management meeting of the firm was held the following day, and notes from the meeting detailed that Ms Udalova-Surkova incorrectly told her colleagues that Mr Levy had salary expectations of £50-£60,000. There was a follow-up email exchange between Ms Udalova-Surkova and the firm’s senior associate, in which Ms Udalova-Surkova asked: “Just to confirm, we are not interested in Mr Raymond Levy, right?” and to which he replied “Yep”. Ms Udalova-Surkova contacted Mr Levy on 12 March to say the firm had decided not to offer him the job. She said they had assessed the role’s requirements at the management meeting and decided to aim for a more junior solicitor “with three-to-five years’ PQE”.
The employment tribunal decision
Mr Levy brought claims of discrimination to the tribunal citing his age as the reason he was not offered the role. The tribunal concluded that Mr Levy met all the required qualifications for the role and, had his application gone further, he would have likely been offered the job. Despite evidence before the tribunal indicating that McHale Legal had expected a senior hire at this level to attract a salary of £50-£60,000, the firm made the decision to change the requirements of the role, after deeming Mr Levy “expensive”.
The tribunal focussed on this and the fact that no effort was made to negotiate pay with Mr Levy. Instead, the tribunal held, McHale Legal “leapt to a conclusion…inextricably linked to his age and therefore directly discriminatory”. The manner in which the firm defended the proceedings was also criticised by the tribunal as both intimidating and oppressive, which lead to an award of aggravated damages, a remedy available in the UK. The tribunal found that the firm’s conduct was a denial of Mr Levy’s right to complain about discrimination because it threatened to report him to his professional body for having brought the claim. However, the tribunal decided to mitigate the amount of Mr Levy’s award. It believed a “clash of personalities… would inevitably have arisen” and, because it had ceased handling commercial property work in the months following the interview, the tribunal concluded that Mr Levy’s appointment would only have lasted for one month before he would have been given a week’s notice. The tribunal ordered the firm to pay £13,188 for loss of earnings, injury to feelings, aggravated damages and interest.
The learnings here are twofold for small businesses and HR professionals alike. Job openings advertised solely to test the market should be published with caution and consideration should always be given to putting a specified and objective selection criteria in place for candidates who are called for interview. Prospective respondent employers should also be mindful of the arguments put forward by them in defence of discrimination cases and the manner same are presented as this may impact any compensation awarded to claimants. In Ireland, if you are not an employee, you may be awarded compensation for the effects of the discrimination that you have suffered up to a maximum of €13,000.