Town council ordered to pay compensation over indirect age discrimination in search for new clerk/CEO

Employment judge Dawson ordered the council to pay James Sheehy compensation and interest totalling £2,792 for injury to feelings by indirect age discrimination, but dismissed a claim for direct discrimination.

The judge said Mr Sheehy was aged 29 when he applied for the town clerk/CEO role, which demanded applicants must have a degree, a certificate in local council administration and at least 10 years’ experience in the direct management of employees at a senior level.

Mr Sheehy had been a town clerk at Witham, Dunmow and Christchurch town councils and held the certificate but lacked a degree and was too young to have accumulated 10 years of management experience.

The judge heard that the chief executive role goes significantly beyond the town clerk’s statutory duties, as the council receives significant business income and manages a market and baths.

Mr Sheehy and previous town clerk, a Ms Young, disagreed on what happened when he called to complain about being excluded from the shortlist for interviews.

He said Ms Young was hostile and combative, while she said he became progressively more aggressive during the telephone call.

“What is not in dispute, however, is that as a consequence of that telephone call, Ms Young told the claimant that his application would, now, be reconsidered by the staffing subcommittee,” Judge Dawson noted.

This subcommittee though decided not to take forward Mr Sheehy’s application.

The judge said: “Weighing all of those matters, I find it is more likely than not that the claimant was at least, very assertive with Ms Young during the conversation.

“It is likely that his manner reflected his belief that he was being blocked in succeeding in his career because of his age. I find that Ms Young sought to defend herself against the allegations by saying what she did.

“I do not accept the claimant’s case that Ms Young was hostile and combative… I find that Ms Young was not hostile towards the claimant because of his age.”

Cllr Alan Penson told the tribunal that nothing in Mr Sheehy’s application set him apart from other applicants, and he was unconvinced about his senior management experience.

“Another big negative was that he had only stayed at his two previous employers for a year and then just six months,” Cllr Penson said.

He said he was “really concerned” that Mr Sheehy had served only six months at Christchurch before departing for a ‘career break’ “which seemed very odd”.

The judge said that even if the council had not required substantial experience on the part of candidates, “it is more likely than not that the claimant would not have got the job”.

There is no evidence that somebody who was older than the claimant but who did not have a degree and 10 years’ experience as required would have been treated any differently and “the claim of direct age discrimination fails because there is nothing to suggest that an older person would have been treated more favourably than the claimant was”, the judge said.

Judge Dawson said the difficulty with the council’s case was “it has produced no evidence from which I could conclude that it was reasonably necessary for a candidate to have 10 years’ experience as required, rather than say, eight years’ experience.

“Ms Young accepted that it was difficult to explain why that length of experience was reasonably necessary. The burden of proof is on the respondent in this respect. Whilst the respondent has persuaded me that it was necessary to appoint somebody with substantial experience to the role, it has not persuaded me that 10 years’ experience is anything other than an arbitrary figure.

“My view is fortified by the fact that other person specifications for similar roles to which I have been referred do not require 10 years’ experience. The length of experience required clearly discriminates against younger people.”

Mark Smulian