A law firm’s rejection of an experienced solicitor for a vacancy with the firm was direct age discrimination.
McHale Legal advertised for a solicitor with at least five years’ post-qualification experience (PQE) to join its commercial property team in Manchester. Mr Levy, who was 57, was the only candidate for the role. He was used to a London salary but suggested that the departing solicitor’s salary could form the basis for pay discussions and also offered to work on a self-employed basis. He was told the decision was subject to a ‘board meeting’. In the interviewing solicitor’s notes for that board meeting, she simply said Mr Levy was the only person to apply for the role and the note included the words: “Expensive. Doesn’t cover our needs.” There was no negotiation of the salary with Mr Levy.
In the rejection email, Mr Levy was told that the firm was looking for a solicitor with three to five years’ PQE to train to its specific requirements and it would keep him in mind if it should have a need for a “senior lawyer” in the future. However, the firm’s senior partner told the employment tribunal that the email was “regrettable and unnecessary” and attributed the content to a desire to be polite to Mr Levy. The firm eventually covered the vacancy with junior or unqualified staff members.
The employment tribunal concluded that Mr Levy would have been a suitable replacement for the departing experienced associate solicitor and it was satisfied that the reason why he was not offered the position was because he was considered ‘expensive’ and that this was synonymous with his being an experienced and older solicitor.
This case reminds employers to ensure they make a careful record of any decision-making. While employers may not want to hurt an applicant’s feelings, the reasons given for rejecting them should be properly explained. Under GDPR candidate notes should not be kept for longer than is necessary, but it is appropriate to retain notes for a reasonable period in case they are needed to defend a discrimination claim. If employers are faced with such a claim, they should also be clear and consistent in their defence: the tribunal in this case went to great lengths to scrutinise the varying reasons given by the law firm and its witnesses for deciding to reject Mr Levy’s application.